I.

JUDICIARY
Republic of the Philippines SUPREME COURT Manila Pursuant to the Constitution, "the Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law.1 This provision vests in the judicial branch of the government, not merely some specified or limited judicial power, but "the" judicial power under our political system, and, accordingly, the entirety or "all" of said power, except, only, so much as the Constitution confers upon some other agency, such as the power to "judge all contests relating to the election, returns and qualifications" of members of the Senate and those of the House of Representatives which is vested by the fundamental law solely in the Senate Electoral Tribunal and the House Electoral Tribunal, respectively.2 Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights. 3 The proper exercise of said authority requires legislative action: (1) defining such enforceable and demandable rights and/or prescribing remedies for violations thereof; and (2) determining the court with jurisdiction to hear and decide said controversies or disputes, in the first instance and/or on appeal. For this reason, the Constitution ordains that "Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts," subject to the limitations set forth in the fundamental law.4 Prior to the approval of Republic Act No. 1793, a defeated candidate for president or vice-president, who believe that he was the candidate who obtained the largest number of votes for either office, despite the proclamation by Congress of another candidate as the president-elect or vice-president-elect, had no legal right to demand by election protest a recount of the votes cast for the office concerned, to establish his right thereto. As a consequence, controversies or disputes on this matter were not justiciable.5 Section 1 of Republic Act No. 1793, which provides that: There shall be an independent Presidential Electoral Tribunal ... which shall be the sole judge of all contests relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines. has the effect of giving said defeated candidate the legal right to contest judicially the election of the President-elect or Vice-President-elect and to demand a recount of the votes cast for the office involved in the litigation as well as to secure a judgment declaring that he 6 is the one elected president or vice-president, as the case may be, 7 and that, as such, he is entitled to assume the duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation has conferred upon such Court an additional original jurisdiction of an exclusive character.8 Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be likened to the fact that courts of first instance perform the functions of such ordinary courts of first instance,9 those of court of land registration, 10 those of probate courts, 11 and those of courts of juvenile and domestic relations. 12 It is, also, comparable to the situation obtaining when the municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number of cases which were previously within the exclusive jurisdiction of courts of first instance. 13 In all of these instances, the court (court of first instance or municipal court) is only one, although the functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate from, those of the same court acting as a court of land registration or a probate court, or as a court of juvenile and domestic relations. So too, the authority of the municipal court of a provincial

EN BANC G.R. No. L-25716 July 28, 1966

FERNANDO LOPEZ, petitioner, vs. GERARDO ROXAS and PRESIDENTIAL ELECTORAL TRIBUNAL, respondents. Vicente Francisco Sycip and Salazar for respondents. CONCEPCION, C.J.: Petitioner Fernando Lopez and respondent Gerardo Roxas were the main contenders for the Office of Vice-President of the Philippines in the general elections held on November 9, 1965. By Resolution No. 2, approved on December 17, 1965, the two Houses of Congress, in joint session assembled as the board charged with the duty to canvass the votes then cast for President and Vice President of the Philippines, proclaimed petitioner Fernando Lopez elected to the latter office with 3,531,550 votes, or a plurality of 26,724 votes over his closest opponent, respondent Gerardo M. Roxas, in whose favor 3,504,826 votes had been tallied, according to said resolution. On January 5, 1966, respondent filed, with the Presidential Electoral Tribunal, Election Protest No. 2, contesting the election of petitioner herein as Vice-President of the Philippines, upon the ground that it was not he, but said respondent, who had obtained the largest number of votes for said office. On February 22, 1966, petitioner Lopez instituted in the Supreme Court the present original action, for prohibition with preliminary injunction, against respondent Roxas, to prevent the Presidential Electoral Tribunal from hearing and deciding the aforementioned election contest, upon the ground that Republic Act No. 1793, creating said Tribunal, is "unconstitutional," and that, "all proceedings taken by it are a nullity." Petitioner's contention is predicated upon the ground, that Congress may not, by law, authorize an election contest for President and Vice-President, the Constitution being silent thereon; that such contest tends to nullify the constitutional authority of Congress to proclaim the candidates elected for President and Vice-President; that the recount of votes by the Presidential Electoral Tribunal, as an incident of an election contest, is inconsistent with the exclusive power of Congress to canvass the election returns for the President and the Vice-President; that no amendment to the Constitution providing for an election protest involving the office of President and VicePresident has been adopted, despite the constitutional amendment governing election contests for Members of Congress; that the tenure of the President and the Vice-President is fixed by the Constitution and cannot be abridged by an Act of Congress, like Republic Act No. 1793; that said Act has the effect of amending the Constitution, in that it permits the Presidential Electoral Tribunal to review the congressional proclamation of the president-elect and the vice-president-elect; that the constitutional convention had rejected the original plan to include in the Constitution a provision authorizing election contest affecting the president-elect and the vice-president-elect before an electoral commission; that the people understood the Constitution to authorize election contests only for Members of Congress, not for President and Vice-President, and, in interpreting the Constitution, the people's intent is paramount; that it is illegal for Justices of the Supreme Court to sit as members of the Presidential Electoral Tribunal, since the decisions thereof are appealable to the Supreme Court on questions of law; that the Presidential Electoral Tribunal is a court inferior to the Supreme Court; and that Congress cannot by legislation appoint in effect the members of the Presidential Electoral Tribunal. for petitioner.

capital, when acting as such municipal court, is, territorially more limited than that of the same court when hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance. In other words, there is only one court, although it may perform the functions pertaining to several types of courts, each having some characteristics different from those of the others. Indeed, the Supreme Court, 14 the Court of Appeals 15 and courts of first instance, 16 are vested with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are booth trial courts and appellate courts, without detracting from the fact that there is only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to discharged said dual functions. A court of first instance, when performing the functions of a probate court or a court of land registration, or a court of juvenile and domestic relations, although with powers less broad than those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment vested by the Constitution in the President. It merely connotes the imposition of additional duties upon the Members of the Supreme Court. 17 Moreover, the power to be the "judge ... of ... contests relating to the election, returns, and qualifications" of any public officer is essentially judicial. As such under the very principle of separation of powers invoked by petitioner herein it belongs exclusively to the judicial department, except only insofar as the Constitution provides otherwise. This is precisely the reason why said organic law ordains that "the Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members" (Article VI, Section 11, of the Constitution). In other words, the purpose of this provision was to exclude the power to decide such contests relating to Members of Congress which by nature is judicial 18 from the operation of the general grant of judicial power 19 to "the Supreme Court and such inferior courts as may be established by law. Instead of indicating that Congress may not enact Republic Act No. 1793, the aforementioned provision of the Constitution, establishing said Electoral Tribunals for Members of Congress only, proves the exact opposite, namely: that the Constitution intended to vest Congress with discretion 20 to determine by law whether or not the election of a presidentelect or that of a vice-president-elect may be contested and, if Congress should decide in the affirmative, which court of justice shall have jurisdiction to hear the contest. It is, even, debatable whether such jurisdiction may be conferred, by statute, to a board, commission or tribunal composed partly of Members of Congress and Members of the Supreme Court because of its possible inconsistency with the constitutional grant of the judicial power to "the Supreme Court and ... such inferior courts as may be established by law," for said board, commission or tribunal would be neither "the Supreme Court, 21 nor, certainly, "such inferior courts as, may be established by law." It follows, therefore, not only that Republic Act No. 1793 is not inconsistent with the Constitution or with the principle of separation of powers underlying the same, but, also, that it is in harmony with the aforementioned grant of "the judicial power" to said courts. Indeed, when Claro M. Recto, Chairman of the Constitutional Convention, proposed that the original move therein to include in the fundamental law a provision creating an Electoral Commission 22 to hear election contests against the President-elect and the Vice-President-elect, be given up, he expressed the view that the elimination of said provision would have the effect of leaving in the hands of the legislative department the power to decide what entity or body would "look into the protests for the positions of President and Vice-President." 23 Twenty-two (22) years later, or on May 3, 1957 then Senator Recto reiterated this view, when, in the course of the debates on the Bill which later became Republic Act No. 1793, he stated:

... Mr. President, as far as I can remember, the intention of the constitutional convention was to leave this matter to ordinary legislation. Such was, also, the impression of Dr. Jose M. Aruego, another prominent Member of the Convention, who says 24 that Election protests for the Presidency and the Vice-Presidendency were left to be judged in a manner and by a body decided by the National Assembly. (Emphasis ours.) No less than one of the main counsel for petitioner herein, himself, another delegate to the Constitutional Convention, evidently shared this view as late as September 30, 1965, for the introduction to his 1965 edition of "the Revised Election Code" states that "he will always be remembered for ... his famous bill creating the Presidential Electoral Tribunal ...". Indeed as a member of the Senate, on January 3, 1950, he Introduced Senate Bill No. 1 seeking to create a Presidential Electoral Tribunal "to try, hear and decide protests contesting the election of the President and the Vice-President of the Philippines", which shall be composed of three Justices of the Supreme Court, including the Chief Justice, and four Senators and four Members of the House of Representatives. Then, again, the records of the Convention show, that in voting eventually to eliminate, from the draft of the Constitution, the provision establishing a Presidential Electoral Commission, the delegates were influenced by the fact that there was no similar provision in the Federal Constitution of the United States. Having followed the pattern thereof, it must be assumed, therefore, in the absence of any indicium to the contrary, 25 that the Convention had adhered, also, to the interpretation given to this feature of said Federal Constitution, as may be deduced from the fact that, by an act of Congress of the United States, approved on January 29, 1877, an Electoral Commission was created to hear and decide certain issues concerning the election of the President of said nation held in 1876. It is, also worthy of notice that pursuant to said Act, nothing therein "shall be held to impair or affect any right now existing under the Constitution and laws to question, by proceedings in the judicial courts of the United States, the right or title of the person who shall be declared elected, or who shall claim to be President or Vice-President of the United States, if any such right exists". 26 Thus the absence of a provision in said Federal Constitution governing protests against the election of the President and the VicePresident had been construed to be without prejudice to the right of the defeated candidate to file a protest before the courts of justice of the United States, if the laws thereof permitted it . In other words, the Federal Congress was deemed clothed with authority to determine, by ordinary legislation, whether or not protests against the election of said officers may properly be entertained by the judicial department. Needless to say, the power of congress to declare who, among the candidates for President and/or Vice-President, has obtained the largest number of votes, is entirely different in nature from and not inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by Republic Act No. 1793. Congress merely acts as a national board of canvassers, charged with the ministerial and executive duty 27 to make said declaration, on the basis of the election returns duly certified by provincial and city boards of canvassers. 28 Upon the other hand, the Presidential Electoral Tribunal has the judicial power to determine whether or not said duly certified election returns have been irregularly made or tampered with, or reflect the true result of the elections in the areas covered by each, and, if not, to recount the ballots cast, and, incidentally thereto, pass upon the validity of each ballot or determine whether the same shall be counted, and, in the affirmative, in whose favor, which Congress has power to do. It is, likewise, patent that the aforementioned authority of the Presidential Electoral Tribunal to determine whether or not the protestant has a better right than the President and/or the Vice-President declared elected by Congress would not abridge the constitutional tenure. If the evidence introduced in the election protest shows that the person really elected president or vice-president is the protestant, not the person declared elected by Congress, then the latter had legally no constitutional tenure whatsoever, and, hence, he can claim no abridgement thereof.1wph1.t

It is similarly obvious that, in imposing upon the Supreme Court the additional duty of performing the functions of a Presidential Electoral Tribunal, Congress has not, through Republic Act No. 1793, encroached upon the appointing power of the Executive. The imposition of new duties constitutes, neither the creation of an office, nor the appointment of an officer. 29 In view of a resolution of this Court dated July 8, 1966, upholding the validity of Republic Act No. 1793, upon the ground that it merely vests additional jurisdiction in the Supreme Court, petitioner has filed a motion dated July 13, 1966, praying this Court "to clarify whether or not" this "election contest should as a consequence ... be docketed with, and the records thereof transferred, to this Supreme Court, and all pleadings, papers and processes relative thereto should thence forth be filed with it". The motion is, evidently, based upon the premise that the Supreme Court is different and distinct from the Presidential Electoral Tribunal, which is erroneous, as well as contrary to the ruling made in said resolution. Wherefore, the petition herein is hereby dismissed and the writs therein prayed for denied accordingly. The aforesaid motion is, moreover, denied. With costs against the petitioner. It is so ordered. Republic of the Philippines SUPREME COURT Manila EN BANC

GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents. G.R. No. L-34004 December 11, 1971 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association, petitioner, vs. BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent. G.R. No. L-34013 December 11, 1971 REYNALDO RIMANDO, petitioner, vs. BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent. G.R. No. L-34039 December 11, 1971

G.R. No. L-33964 December 11, 1971 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners, vs. BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent. G.R. No. L-33965 December 11, 1971 ROGELIO V. ARIENDA, petitioner, G.R. No. L-34265 December 11, 1971 vs. SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents. G.R. No. L-33973 December 11, 1971 LUZVIMINDA DAVID, petitioner, vs. GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C. CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE ENRILE in his capacity as Secretary, Department of National defense, respondents. G.R. No. L-33982 December 11, 1971 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTE FELICIDAD G. PRUDENTE, petitioners, vs. GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents. G.R. No. L-34339 December 11, 1971 GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner, vs. GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et al., respondents. Ignacio P. Lacsina for petitioners Teodosio Lansang, et al. Ramon A. Gonzales for petitioner Rogelio V. Arienda. E. Voltaire Garcia II for petitioner Luzvimindo David. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR. ANTOLIN ORETA, JR., petitioner, vs. IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT. FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C. RABAGO, in his capacity as President of the Conference Delegates Association of the Philippines (CONDA),petitioner, vs. BRIG. GEN. EDUARDO Constabulary, respondent. M. GARCIA, Chief, Philippine

Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon, R. G. Suntay and Juan T. David for petitioner Felicidad G. Prudente. Ruben L. Roxas for petitioner Reynaldo Rimando. Nuez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc. E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al. Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr. Domingo E. de Lara for and in his own behalf. Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P. Pardo for respondents.

and broadened their memberships through sustained and careful recruiting and enlistment of new adherents from among our peasantry, laborers, professionals, intellectuals, students, and mass media personnel, and through such sustained and careful recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their ceaseless determination to erode and weaken the political, social, economic and moral foundations of our existing government and to influence many peasant, labor, professional, intellectual, student and mass media organizations to commit acts of violence and depredations against our duly constituted authorities, against the members of our law enforcement agencies, and worst of all, against the peaceful members of our society; WHEREAS, these lawless elements have created a state of lawlessness and disorder affecting public safety and the security of the State, the latest manifestation of which has been the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has resulted in the death and serious injury of scores of persons; WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authority of the State; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ of habeas corpus, for the persons presently detained, as well as others who may be hereafter similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith. Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following persons, who, having been arrested without a warrant therefor and then detained, upon the authority of said proclamation, assail its validity, as well as that of their detention, namely: 1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case No. L-33964 filed on August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m., were "invited" by agents of the Philippine Constabulary which is under the command of respondent Brig. Gen. Eduardo M. Garcia to go and did go to the headquarters of the Philippine Constabulary, at Camp Crame, Quezon City, for interrogation, and thereafter, detained; 2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24, 1971 who was picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of the Metrocom and then detained; 3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the same was amended to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although, apart from stating that these additional petitioners are temporarily

CONCEPCION, C.J.: In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections scheduled for November 8, 1971, two (2) hand grenades were thrown, one after the other, at the platform where said candidates and other persons were. As a consequence, eight (8) persons were killed and many more injured, including practically all of the aforementioned candidates, some of whom sustained extensive, as well as serious, injuries which could have been fatal had it not been for the timely medical assistance given to them. On August 23, soon after noontime, the President of the Philippines announced the issuance of Proclamation No. 889, dated August 21, 1971, reading as follows: WHEREAS, on the basis of carefully evaluated information, it is definitely established that lawless elements in the country, which are moved by common or similar ideological conviction, design and goal and enjoying the active moral and material support of a foreign power and being guided and directed by a well trained, determined and ruthless group of men and taking advantage of our constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of actually staging, undertaking and waging an armed insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our existing political social, economic and legal order with an entirely new one whose form of government, whose system of laws, whose conception of God and religion, whose notion of individual rights and family relations, and whose political, social and economic precepts are based on the Marxist-Leninist-Maoist teachings and beliefs; WHEREAS, these lawless elements, acting in concert through front organizations that are seemingly innocent and harmless, have continuously and systematically strengthened

residing with the original petitioner, Rogelio V. Arienda, the amended petition alleged nothing whatsoever as regards the circumstances under which said Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty; 4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the Constabulary; 5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971 upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m., been apprehended by Constabulary agents in his house, at St. Ignatius Village, Quezon City, and then detained at the Camp Crame stockade, Quezon City; 6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one of the petitioners in Cases Nos. L33964, L-33965 and L-33973, he having been arrested by members of the Constabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where he is detained and restrained of liberty; 7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3) cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at Sta. Rosa, Laguna, by members of the Philippine Constabulary and brought, first to the Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where he is detained and restrained of liberty; 8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same three (3) cases, he having been arrested in his residence, at 318 Lakandula St., Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando, Pampanga, and eventually to Camp Crame, Quezon City, where he is restrained and deprived of liberty; 9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. Louis University, Baguio City, on whose behalf, Domingo E. de Lara in his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association filed on September 3, 1971, the petition in Case No. L-34004, upon the ground that said Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested by Constabulary agents, while on his way to school in the City of Baguio, then brought to the Constabulary premises therein at Camp Holmes, and, thereafter, taken, on August 24, 1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the Constabulary headquarters at Camp Crame, Quezon City, where he is detained; 10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971 a 19-year old student of the U.P. College in Baguio city who, while allegedly on his way home, at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3) men who brought him to the Burnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he is detained; 11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose behalf Carlos C. Rabago as President of the Conference Delegates Association of the Philippines (CONDA) filed the petition in Case No. L-34039 on September 14, 1971 against Gen. Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the PC headquarters at

Camp Crame, where, later, that same afternoon, her husband was brought, also, by PC agents and both are detained; 12. ANTOLIN ORETA, JR., who filed the petition in Case No. L34265 on October 26, 1971 against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the Central Intelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation from said CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the CIS; that the latter, in turn, referred him to CIS Investigator Atty. Berlin Castillo and another CIS against, whose name is unknown to the petitioner; and that, after being interrogated by the two (2), petitioner was detained illegally; and 13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who was apprehended, by agents of the Constabulary, in the evening of November 8, 1941, in Quezon City, and then detained at Camp Crame, in the same City. Upon the filing of the aforementioned cases, the respondents were forthwith required to answer the petitions therein, which they did. The return and answer in L-33964 which was, mutatis mutandis, reproduced substantially or by reference in the other cases, except L-34265 alleges, inter alia, that the petitioners had been apprehended and detained "on reasonable belief" that they had "participated in the crime of insurrection or rebellion;" that "their continued detention is justified due to the suspension of the privilege of the writ of habeas corpus pursuant to Proclamation No. 889 of the President of the Philippines;" that there is "a state of insurrection or rebellion" in this country, and that "public safety and the security of the State required the suspension of the privilege of the writ of habeas corpus," as "declared by the President of the Philippines in Proclamation No. 889; that in making said declaration, the "President of the Philippines acted on relevant facts gathered thru the coordinated efforts of the various intelligence agents of our government but (of) which the Chief Executive could not at the moment give a full account and disclosure without risking revelation of highly classified state secrets vital to its safely and security"; that the determination thus made by the President is "final and conclusive upon the court and upon all other persons" and "partake(s) of the nature of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v. Castaeda, 91 Phil. 882; that petitioners "are under detention pending investigation and evaluation of culpabilities on the reasonable belief" that they "have committed, and are still committing, individually or in conspiracy with others, engaged in armed struggle, insurgency and other subversive activities for the overthrow of the Government; that petitioners cannot raise, in these proceedings for habeas corpus, "the question of their guilt or innocence"; that the "Chief of Constabulary had petitioners taken into custody on the basis of the existence of evidence sufficient to afford a reasonable ground to believe that petitioners come within the coverage of persons to whom the privilege of the writ of habeas corpus has been suspended"; that the "continuing detention of the petitioners as an urgent bona fide precautionary and preventive measure demanded by the necessities of public safety, public welfare and public interest"; that the President of the Philippines has "undertaken concrete and abundant steps to insure that the constitutional rights and privileges of the petitioners as well as of the other persons in current confinement pursuant to Proclamation 889 remain unimpaired and unhampered"; and that "opportunities or occasions for abuses by peace officers in the implementation of the proclamation have been greatly minimized, if not completely curtailed, by various safeguards contained in directives issued by proper authority." These safeguards are set forth in: 1. A letter of the President to the Secretary of National Defense, dated August 21, 1971, directing, inter alia, in connection with the arrest or detention of suspects pursuant to Proclamation No. 889,

that, except when caught in flagrante delicto, no arrest shall be made without warrant authorized in writing by the Secretary of National Defense; that such authority shall not be granted unless, "on the basis of records and other evidences," it appears satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court, that the person to be arrested is probably guilty of the acts mentioned in the proclamation; that, if such person will be charged with a crime subject to an afflictive penalty under the AntiSubversion Act, the authorization for his arrest shall not be issued unless supported by signed intelligence reports citing at least one reliable witness to the same overt act; that no unnecessary or unreasonable force shall be used in effecting arrests; and that arrested persons shall not be subject to greater restraint than is necessary for their detention; 2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units of his command, stating that the privilege of the writ is suspended for no other persons than those specified in the proclamation; that the same does not involve material law; that precautionary measures should be taken to forestall violence that may be precipitated by improper behavior of military personnel; that authority to cause arrest under the proclamation will be exercised only by the Metrocom, CMA, CIS, and "officers occupying position in the provinces down to provincial commanders"; that there shall be no indiscriminate or mass arrests; that arrested persons shall not be harmed and shall be accorded fair and humane treatment; and that members of the detainee's immediate family shall be allowed to visit him twice a week; 3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the Chief of the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent and/or check any abuses in connection with the suspension of the privilege of the writ; and 4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative Assistance Committee to hear complaints regarding abuses committed in connection with the implementation of Proclamation No. 889. Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang had been released from custody on August 31, 1971, "after it had been found that the evidence against them was insufficient." In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner therein, had been and is detained "on the basis of a reasonable ground to believe that he has committed overt acts in furtherance of rebellion or insurrection against the government" and, accordingly, "comes within the class of persons as to whom the privilege of the writ of habeas corpus has been suspended by Proclamation No. 889, as amended," the validity of which is not contested by him. On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889, so as to read as follows: WHEREAS, on the basis of carefully evaluated information, it is definitely established that lawless elements in the country, which are moved by common or similar ideological conviction, design and goal and enjoying the active moral and material support of a foreign power and being guided and directed by a welltrained, determined and ruthless group of men and taking advantage of our constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of [actually] staging,

undertaking, [and] wagging and are actually engaged in an armed insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our existing political, social, economic and legal order with an entirely new one whose form of government, whose system of laws, whose conception of God and religion, whose notion of individual rights and family relations, and whose political, social and economic precepts are based on the MarxistLeninist-Maoist teaching and beliefs; WHEREAS, these lawless elements, acting in concert through front organizations that are seemingly innocent and harmless, have continuously and systematically strengthened and broadened their memberships through sustained and careful recruiting and enlistment of new adherents from among our peasantly, laborers, professionals, intellectuals, students, and mass media personnel, and through such sustained and careful recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their ceaseless determination to erode and weaken the political, social, economic and moral foundations of our existing government and influence many peasant, labor, professional, intellectual, student and mass media organizations to commit acts of violence and depredations against our duly constituted authorities, against the members of our law enforcement agencies, and worst of all, against the peaceful members of our society; WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have created a state of lawlessness and disorder affecting public safety and security of the State, the latest manifestation of which has been the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has resulted in the death and serious injury of scores of persons; WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authority of the State; NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ of habeas corpus for the persons presently detained, as well as all others who may be hereafter similarly detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and offenses] overt acts committed by them in furtherance [or on the occasion] thereof[,]. [or incident thereto, or in connection therewith.] 1 On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and then the parties therein were allowed to file memoranda, which were submitted from September 3 to September 9, 1971. Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by Proclamation No. 889-B, lifting the

suspension of the privilege of the writ of habeas corpus in the following provinces, sub-provinces and cities of the Philippine, namely: A. PROVINCES: 1. Batanes 15. Negros Occ. 2. Ilocos Norte 16. Negros Or. 3. Ilocos Sur 17. Cebu 4. Abra 18. Bohol 5. Abra 19. Capiz 6. Pangasinan 20. Aklan 7. Batangas 21. Antique 8. Catanduanes 22. Iloilo 9. Masbate 23. Leyte 10. Romblon 24. Leyte del Sur 11. Marinduque 25. Northern Samar 12. Or. Mindoro 26. Eastern Samar 13. Occ. Mindoro 27. Western Samar 14. Palawan. B. SUB-PROVINCES: 1. Guimaras 2. Biliran C. CITIES: 1. Laog 10. Bacolod 2. Dagupan 11. Bago 3. San Carlos 12. Canlaon 4. Batangas 13. La Carlota 5. Lipa 14. Bais 6. Puerto Princesa 15. Dumaguete 7. San Carlos (Negros 16. Iloilo Occ.) 17. Roxas 8. Cadiz 18. Tagbilaran 9. Silay 19. Lapu-lapu 20. Cebu 24. Tacloban 21. Mandaue 25. Ormoc 22. Danao 26. Calbayog 23. Toledo On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the writ in the following provinces and cities: A. PROVINCES: 1. Surigao del Norte 8. Agusan del Sur 2. Surigao del Sur 9. Misamis Or. 3. Davao del Norte 10. Misamis Occ. 4. Davao del Sur 11. Zamboanga del Norte 5. Davao Oriental 12. Basilan 6. Bukidnon 13. Pagadian 7. Agusan del Norte 3. Siquior

B. CITIES: 1. Surigao 8. Tangub 2. Davao 9. Dapitan 3. Butuan 10. Dipolog 4. Cagayan 11. Zamboanga 5. Gingoong 12. Basilan 6. Ozamiz 13. Pagadian. 7. Oroquieta On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in the following places: A. PROVINCES: 1. Cagayan 5. Camarines 2. Cavite 6. Albay 3. Mountain Province 7. Sorsogon 4. Kalinga-Apayao B. CITIES: 1. Cavite City 3. Trece Martires 2. Tagaytay 4. Legaspi As a consequences, the privilege of the writ of habeas corpus is still suspended in the following eighteen (18) provinces, two (2) subprovinces and eighteen (18) cities, to wit: A. PROVINCE: 1. Bataan 10. North Cotabato 2. Benguet 11. Nueva Ecija 3. Bulacan 13. Pampanga 4. Camarines Sur 14. Quezon 5. Ifugao 15. Rizal 6. Isabela 16. South Cotabato 7. Laguna 17. Tarlac 8. Lanao del Norte 18. Zambales 9. Lanao del Norte B. SUB-PROVINCES: 1. Aurora 2. Quirino C. CITIES: 1. Angeles 10. Manila 2. Baguio 11. Marawi 3. Cabanatuan 12. Naga 4. Caloocan 13. Olongapo 5. Cotabato 14. Palayan 6. General Santos 15. Pasay 7. Iligan 16. Quezon 8 Iriga 17. San Jose 9 Lucena 18. San Pablo The first major question that the Court had to consider was whether it would adhere to the view taken in Barcelon v. Baker, 2 and reiterated in Montenegro v. Castaeda, 3 pursuant to which, "the

authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts and upon all other persons." Indeed, had said question been decided in the affirmative the main issue in all of these cases, except L-34339, would have been settled, and, since the other issues were relatively of minor importance, said cases could have been readily disposed of. Upon mature deliberation, a majority of the Members of the Court had, however, reached, although tentatively, a consensus to the contrary, and decided that the Court had authority to and should inquire into the existence of the factual bases required by the Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the Court deemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of them having previously expressed their views thereof. Accordingly, on October 5, 1971, the Court issued, in L-33964, L33965, L-33973 and L-33982, a resolution stating in part that ... a majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus for all persons detained or to be detained for the crimes of rebellion or insurrection throughout the Philippines, which area has lately been reduced to some eighteen provinces, two subprovinces and eighteen cities with the partial lifting of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B, 889C and 889-D) and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the Philippine Constitution; and considering that the members of the Court are not agreed on the precise scope and nature of the inquiry to be made in the premises, even as all of them are agreed that the Presidential findings are entitled to great respect, the Court RESOLVED that these cases be set for rehearing on October 8, 1971 at 9:30 A.M. xxx xxx xxx On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with cases Nos. L-34004, L-34013, and L34039, and the parties were then granted a period to file memoranda, in amplification of their respective oral arguments, which memoranda were submitted from October 12 to October 21, 1971. Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971, their willingness to impart to the Court classified information relevant to these cases, subject to appropriate security measures, the Court met at closed doors, on October 28 and 29, 1971, and, in the presence of three (3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General and two (2) members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said Armed Forces, on said classified information, most of which was contained in reports and other documents already attached to the records. During the proceedings, the members of the Court, and, occassionally, counsel for the petitioners, propounded pertinent questions to said officers of the Armed Forces. Both parties were then granted a period of time within which to submit their respective observations, which were filed on November 3, 1971, and

complemented by some documents attached to the records on November 6, 1971, and a summary, submitted on November 15, 1971, of the aforesaid classified information. In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties therein were heard in oral argument on November 4, and 16, 1971, respectively. On November 15, 1971, the Solicitor General filed manifestations motions stating that on November 13, 1971, the following petitioners were: (a) released from custody: (1) Teodosio Lansang -- G.R. No. (2) Bayani Alcala -" " (3) Rogelio Arienda -- " " (4) Nemesio Prudente -- " " (5) Gerardo Tomas -- " " (6) Reynaldo Rimando -- " " (7) Filomeno M. de Castro -- " " (8) Barcelisa de Castro -- " " (9) Antolin Oreta, Jr. -- " " L-34264. L-33964 L-33964 L-33965 L-33982 L-34004 L-34013 L-34039 L-34039

(b) charged, together with other persons named in the criminal complaint filed therefor, with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City: (1) Angelo de los Reyes -- G.R. No. L-22982 * (2) Teresito Sison -- " " L-33982 * (c) accused, together with many others named in the criminal complaint filed therefor, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal: (1) Rodolfo del Rosario -- G.R. No. L-33969 ** (2) Luzvimindo David -- " " L-33973 (3) Victor Felipe -- " " L-33982 * and continue under detention pursuant to Proclamation No. 889, as amended, and praying that the petitions in G.R. Nos. L-33964, L33965, L-33982, L-34004, L-34013 and L-34039 be dismissed, without prejudice to the resolution of the remaining cases. Copy of the criminal complaint filed, as above stated, with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q-1623 of said court which was appended to said manifestations-motions of the respondent as Annex 2 thereof shows that Gary Olivar, the petitioner in L-34339, is one of the defendants in said case. Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in his comment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of these cases, particularly on the constitutionality of Presidential Proclamation No. 889, as amended, upon the ground that he is still detained and that the main issue is one of public interest involving as it does the civil liberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit the petitions in L-33982 and L-34004 have been filed, maintained that the issue in these cases is not moot, not even for the detainees who have been released, for, as long as the privilege of the writ remains suspended, they are in danger of being arrested and detained again without just cause or valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General insisted that the release of the above-named petitioners rendered their respective petitions moot and academic. I

Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should be noted that, as originally formulated, Proclamation No. 889 was contested upon the ground that it did not comply with the pertinent constitutional provisions, namely, paragraph (14) of section 1, Article III of our Constitution, reading: The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any way of which events the same may be suspended wherever during such period the necessity for such suspension shall exist. and paragraph (2), section 10, Article VII of the same instrument, which provides that: The President shall be commander-in-chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus in case of "imminent danger" of invasion, insurrection or rebellion which is one of the grounds stated in said paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14), section 1 of its Bill of Rights petitioners maintained that Proclamation No. 889 did not declare the existence of actual "invasion insurrection or rebellion or imminent danger thereof," and that, consequently, said Proclamation was invalid. This contention was predicated upon the fact that, although the first "whereas" in Proclamation No. 889 stated that "lawless elements" had "entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of actually staging, undertaking and waging an armed insurrection and rebellion," the actuality so alleged refers to the existence, not of an uprising that constitutes the essence of a rebellion or insurrection, but of the conspiracy and the intent to rise in arms. Whatever may be the merit of this claim, the same has been rendered moot and academic by Proclamation No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia, the first "whereas" of the original proclamation by postulating the said lawless elements "have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of staging, undertaking, waging and are actually engaged in an armed insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our existing political, social, economic and legal order with an entirely new one ...." Moreover, the third "whereas" in the original proclamation was, likewise, amended by alleging therein that said lawless elements, "by their acts of rebellion and insurrection," have created a state of lawlessness and disorder affecting public safety and the security of the State. In other words, apart from adverting to the existence of actual conspiracy and of the intent to rise in arms to overthrow the government, Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an armed insurrection and rebellion" to accomplish their purpose. It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and particularly, the circumstances under which it had been issued, clearly suggest the intent to aver that

there was and is, actually, a state of rebellion in the Philippines, although the language of said proclamation was hardly a felicitous one, it having in effect, stressed the actuality of the intent to rise in arms, rather than of the factual existence of the rebellion itself. The pleadings, the oral arguments and the memoranda of respondents herein have consistently and abundantly emphasized to justify the suspension of the privilege of the writ of habeas corpus the acts of violence and subversion committed prior to August 21, 1971, by the lawless elements above referred to, and the conditions obtaining at the time of the issuance of the original proclamation. In short, We hold that Proclamation No. 889-A has superseded the original proclamation and that the flaws attributed thereto are purely formal in nature. II Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the above-quoted provisions of the Constitution, two (2) conditions must concur for the valid exercise of the authority to suspend the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. The Presidential Proclamation under consideration declares that there has been and there is actually a state of rebellion and that 4 "public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authority of the State." Are these findings conclusive upon the Court? Respondents maintain that they are, upon the authority of Barcelon v. Baker 5 and Montenegro v. Castaeda. 6 Upon the other hand, petitioners press the negative view and urge a reexamination of the position taken in said two (2) cases, as well as a reversal thereof. The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied heavily upon Martin v. Mott 7 involving the U.S. President's power to call out the militia, which he being the commander-in-chief of all the armed forces may be exercised to suppress or prevent any lawless violence, even without invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly, much broader than his authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the latter does individual liberty; and (b) the privilege had been suspended by the American Governor-General, whose act, as representative of the Sovereign, affecting the freedom of its subjects, can hardly be equated with that of the President of the Philippines dealing with the freedom of the Filipino people, in whom sovereignty resides, and from whom all government authority emanates . The pertinent ruling in the Montenegro case was based mainly upon the Barcelon case, and hence, cannot have more weight than the same. Moreover, in the Barcelon case, the Court held that it could go into the question: "Did the Governor-General" acting under the authority vested in him by the Congress of the United States, to suspend the privilege of the writ of habeas corpus under certain conditions "act in conformance with such authority?" In other words, it did determine whether or not the Chief Executive had acted in accordance with law. Similarly, in the Montenegro case, the Court held that petitioner therein had "failed to overcome the presumption of correctness which the judiciary accords to acts of the Executive ...." In short, the Court considered the question whether or not there really was are rebellion, as stated in the proclamation therein contested. Incidentally, even the American jurisprudence is neither explicit nor clear on the point under consideration. Although some cases 8 purport to deny the judicial power to "review" the findings made in the proclamations assailed in said cases, the tenor of the opinions therein given, considered as a whole, strongly suggests the court's conviction that the conditions essential for the validity of said proclamations or orders were, in fact, present therein, just as the opposite view taken in other cases 9 had a backdrop permeated or

characterized by the belief that said conditions were absent. Hence, the dictum of Chief Justice Taney to the effect that "(e)very case must depend on its own circumstances." 10 One of the important, if not dominant, factors, in connection therewith, was intimated in Sterling v. Constantin, 11 in which the Supreme Court of the United States, speaking through Chief Justice Hughes, declared that: .... When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case the Federal judicial power extends (Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its exercise. .... 12 In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation, the members of the Court are now unanimous in the conviction that it has the authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency thereof. Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended ...." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" or, under Art VII of the Constitution, "imminent danger thereof" "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." 13 For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility. Much less may the assumption be indulged in when we bear in mind that our political system is essentially democratic and republican in character and that the suspension of the privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment and exercise of such right which, under certain conditions, may be a civic duty of the highest order is vital to the democratic system and essential to its successful operation and wholesome growth and development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of the social order established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and violence , in defiance of the Rule of Law such as by rising publicly and taking arms against the government to overthrow the same, thereby committing the crime of rebellion there emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must be forewarned against mistaking mere dissent no matter how emphatic or intemperate it may be for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse when the existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied to uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize. As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be "invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof"; and (b) public safety must require the aforementioned suspension. The President declared in Proclamation No. 889, as amended, that both conditions are present. As regards the first condition, our jurisprudence 14 attests abundantly to the Communist activities in the Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally at incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the Commonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to be able to organize and operate in Central Luzon an army called HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after liberation which clashed several times with the armed forces of the Republic. This prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas corpus, the validity of which was upheld in Montenegro v. Castaeda. 15 Days before the promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in the Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they served their respective sentences. 16 The fifties saw a comparative lull in Communist activities, insofar as peace and order were concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act, was approved, upon the ground stated in the very preamble of said statute that. ... the Communist Party of the Philippines, although purportedly a political party, is in fact an organized conspiracy to overthrow the Government of the Republic of the Philippines, not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control; ... the continued existence and activities of the Communist Party of the Philippines constitutes

a clear, present and grave danger to the security of the Philippines; 17 and ... in the face of the organized, systematic and persistent subversion, national in scope but international in direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special legislation to cope with this continuing menace to the freedom and security of the country.... In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad Hoc Committee of Seven copy of which Report was filed in these cases by the petitioners herein The years following 1963 saw the successive emergence in the country of several mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines) among the workers; the Malayang Samahan ng mga Magsasaka (MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the youth/students; and the Movement for the Advancement of Nationalism (MAN) among the intellectuals/professionals. The PKP has exerted all-out effort to infiltrate, influence and utilize these organizations in promoting its radical brand of nationalism. 18 Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of which composed mainly of young radicals, constituting the Maoist faction reorganized the Communist Party of the Philippines early in 1969 and established a New People's Army. This faction adheres to the Maoist concept of the "Protracted People's War" or "War of National Liberation." Its "Programme for a People's Democratic Revolution" states, inter alia: The Communist Party of the Philippines is determined to implement its general programme for a people's democratic revolution. All Filipino communists are ready to sacrifice their lives for the worthy cause of achieving the new type of democracy, of building a new Philippines that is genuinely and completely independent, democratic, united, just and prosperous ... xxx xxx xxx The central task of any revolutionary movement is to seize political power. The Communist Party of the Philippines assumes this task at a time that both the international and national situations are favorable of asking the road of armed revolution ... 19 In the year 1969, the NPA had according to the records of the Department of National Defense conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over 230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its records of violent incidents was about the same, but the NPA casualties more than doubled. At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional group or to the Maoist faction, believe that force and violence are indispensable to the attainment of their main and ultimate objective, and act in accordance with such

belief, although they may disagree on the means to be used at a given time and in a particular place; and (b) there is a New People's Army, other, of course, that the arm forces of the Republic and antagonistic thereto. Such New People's Army is per se proof of the existence of a rebellion, especially considering that its establishment was announced publicly by the reorganized CPP. Such announcement is in the nature of a public challenge to the duly constituted authorities and may be likened to a declaration of war, sufficient to establish a war status or a condition of belligerency, even before the actual commencement of hostilities. We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. In fact, the thrust of petitioners' argument is that the New People's Army proper is too small, compared with the size of the armed forces of the Government, that the Communist rebellion or insurrection cannot so endanger public safety as to require the suspension of the privilege of the writ of habeas corpus. This argument does not negate, however, the existence of a rebellion, which, from the constitutional and statutory viewpoint, need not be widespread or attain the magnitude of a civil war. This is apparent from the very provision of the Revised Penal Code defining the crime of rebellion, 20 which may be limited in its scope to "any part" of the Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege of the writ "wherever" in case of rebellion "the necessity for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a proclamation suspending the privilege in the provinces of Cavite and Batangas only. The case of In re Boyle 21 involved a valid proclamation suspending the privilege in a smaller area a country of the state of Idaho. The magnitude of the rebellion has a bearing on the second condition essential to the validity of the suspension of the privilege namely, that the suspension be required by public safety. Before delving, however, into the factual bases of the presidential findings thereon, let us consider the precise nature of the Court's function in passing upon the validity of Proclamation No. 889, as amended. Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to check not to supplant 22 the Executive, or to ascertain merely whether he had gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin. Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative findings; no quantitative

examination of the supporting evidence is undertaken. The administrative findings can be interfered with only if there is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable mind might accept as adequate to support a conclusion," 23 even if other minds equally reasonable might conceivably opine otherwise. Manifestly, however, this approach refers to the review of administrative determinations involving the exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence in the sense in which the term is used in judicial proceedings before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, 24 the view that: ... If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio ... With the wisdom of the policy adopted, with the adequacy or practically of the law enacted to forward it, the courts are both incompetent and unauthorized to deal ... Relying upon this view, it is urged by the Solicitor General ... that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endanger by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily. No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of coordinate branches of the Government, under our constitutional system, seems to demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness. Did public safety require the suspension of the privilege of the writ of habeas corpus decreed in Proclamation No. 889, as amended? Petitioners submit a negative answer upon the ground: (a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the Government was functioning normally, as were the courts; (c) that no untoward incident, confirmatory of an alleged JulyAugust Plan, has actually taken place after August 21, 1971; (d) that the President's alleged apprehension, because of said plan, is nonexistent and unjustified; and (e) that the Communist forces in the Philippines are too small and weak to jeopardize public safety to such extent as to require the suspension of the privilege of the writ of habeas corpus. As above indicated, however, the existence of a rebellion is obvious, so much so that counsel for several petitioners herein have admitted it.

With respect to the normal operation of government, including courts, prior to and at the time of the suspension of the privilege, suffice it to say that, if the conditions were such that courts of justice no longer functioned, a suspension of the privilege would have been unnecessary, there being no courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the normal operation of courts as a factor indicative of the illegality of the contested act of the Executive stems, perhaps, from the fact that this circumstance was adverted to in some American cases to justify the invalidation therein decreed of said act of the Executive. Said cases involved, however, the conviction by military courts of members of the civilian population charged with common crimes. It was manifestly, illegal for military courts to assume jurisdiction over civilians so charged, when civil courts were functioning normally. Then, too, the alleged absence of any untoward incident after August 21, 1971, does not necessarily bear out petitioners' view. What is more, it may have been due precisely to the suspension of the privilege. To be sure, one of its logical effects is to compel those connected with the insurrection or rebellion to go into hiding. In fact, most of them could not be located by the authorities, after August 21, 1971. The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that, according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is sociological and psychologically selective," and that the indiscriminate resort to terrorism is bound to boomerang, for it tends to alienate the people's symphaty and to deprive the dissidents of much needed mass support. The fact, however, is that the violence used is some demonstrations held in Manila in 1970 and 1971 tended to terrorize the bulk of its inhabitants. It would have been highly imprudent, therefore, for the Executive to discard the possibility of a resort to terrorism, on a much bigger scale, under the July-August Plan. We will now address our attention to petitioners' theory to the effect that the New People's Army of the Communist Party of the Philippines is too small to pose a danger to public safety of such magnitude as to require the suspension of the privilege of the writ of habeas corpus. The flaw in petitioners' stand becomes apparent when we consider that it assumes that the Armed Forces of the Philippines have no other task than to fight the New People's Army, and that the latter is the only threat and a minor one to our security. Such assumption is manifestly erroneous. The records before Us show that, on or before August 21, 1971, the Executive had information and reports subsequently confirmed, in many respects, by the abovementioned Report of the Senate AdHoc Committee of Seven 25 to the effect that the Communist Party of the Philippines does not merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and resorted to the assassination of uncooperative local official; that, in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-San Juan boundary, was bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC building, the Congress Building and the MERALCO substation at Cubao, Quezon City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City. Petitioners, similarly, fail to take into account that as per said information and reports the reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted people's war, aimed at the paralyzation of the will to resist of the government, of the political, economic and intellectual leadership, and of the people themselves; that conformably to such concept, the

Party has placed special emphasis upon a most extensive and intensive program of subversion by the establishment of front organizations in urban centers, the organization of armed city partisans and the infiltration in student groups, labor unions, and farmer and professional groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor organizations; that it has exploited the youth movement and succeeded in making Communist fronts of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30) mass organizations actively advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM) and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three (73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these actions were organized, coordinated or led by the aforementioned front organizations; that the violent demonstrations were generally instigated by a small, but well-trained group of armed agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of fifteen (15) persons and the injury of many more. Subsequent events as reported have also proven that petitioners' counsel have underestimated the threat to public safety posed by the New People's Army. Indeed, it appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in consequence of which seven (7) soldiers lost their lives and two (2)others were wounded, whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA, trained by defector Lt. Victor Corpus, attacked the very command port of TF LAWIN in Isabela, destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of the Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at Botolan, Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of the dissident group were killed; that on August 26, 1971, there was an encounter in the barrio of San Pedro. Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM members were killed; that the current disturbances in Cotabato and the Lanao provinces have been rendered more complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in the reservation; that Esparagoza an operation of the PC in said reservation; and that there are now two (2) NPA cadres in Mindanao. It should, also, be noted that adherents of the CPP and its front organizations are, according to intelligence findings, definitely capable of preparing powerful explosives out of locally available materials; that the bomb used in the Constitutional Convention Hall was a "clay-more" mine, a powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from the Subic Naval Base a few days before; that the President had received intelligence information to the effect that there was a JulyAugust Plan involving a wave of assassinations, kidnappings, terrorism and mass destruction of property and that an extraordinary occurence would signal the beginning of said event; that the rather serious condition of peace and order in Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with the situation; that a sizeable part of our armed forces discharge other functions; and that the expansion of the CPP activities from Central Luzon to other parts of the country,

particularly Manila and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our armed forces be spread thin over a wide area. Considering that the President was in possession of the above data except those related to events that happened after August 21, 1971 when the Plaza Miranda bombing took place, the Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his discretion when he then concluded that public safety and national security required the suspension of the privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance and cooperation of the dozens of CPP front organizations, and the bombing or water mains and conduits, as well as electric power plants and installations a possibility which, no matter how remote, he was bound to forestall, and a danger he was under obligation to anticipate and arrest. He had consulted his advisers and sought their views. He had reason to feel that the situation was critical as, indeed, it was and demanded immediate action. This he took believing in good faith that public safety required it. And, in the light of the circumstances adverted to above, he had substantial grounds to entertain such belief. Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in the entire Philippines, even if he may have been justified in doing so in some provinces or cities thereof. At the time of the issuance of Proclamation No. 889, he could not be reasonably certain, however, about the placed to be excluded from the operation of the proclamation. He needed some time to find out how it worked, and as he did so, he caused the suspension to be gradually lifted, first, on September 18, 1971, in twenty-seven (27) provinces, three (3) sub-provinces and twenty six (26) cities; then, on September 25, 1971, in order fourteen (14) provinces and thirteen (13) cities; and, still later, on October 4, 1971, in seven (7) additional provinces and four (4) cities, or a total of forty-eight (48) provinces, three (3) sub-provinces and forth-three (43) cities, within a period of forty-five (45) days from August 21, 1971. Neither should We overlook the significance of another fact. The President could have declared a general suspension of the privilege. Instead, Proclamation No. 889 limited the suspension to persons detained "for crimes of insurrection or rebellion, and all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith." Even this was further limited by Proclamation No. 889-A, which withdrew from the coverage of the suspension persons detained for other crimes and offenses committed "on the occasion" of the insurrection or rebellion, or "incident thereto, in or connection therewith." In fact, the petitioners in L-33964, L-33982 and L-34004 concede that the President had acted in good faith. In case of invasion, insurrection or rebellion or imminent danger thereof, the President has, under the Constitution, three (3) courses of action open to him, namely: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, which measure, however, proved inadequate to attain the desired result. Of the two (2)other alternatives, the suspension of the privilege is the least harsh. In view of the foregoing, it does not appear that the President has acted arbitrary in issuing Proclamation No. 889, as amended, nor that the same is unconstitutional. III The next question for determination is whether petitioners herein are covered by said Proclamation, as amended. In other words, do

petitioners herein belong to the class of persons as to whom privilege of the writ of habeas corpus has been suspended? In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on November 13, 1971, released "permanently" meaning, perhaps, without any intention to prosecute them upon the ground that, although there was reasonable ground to believe that they had committed an offense related to subversion, the evidence against them is insufficient to warrant their prosecution; that Teodosio Lansang, one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente, petitioner in L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose benefit the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on said date, "temporarily released"; that Rodolfo del Rosario, one of the petitioners in L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L33973, as well as Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still under detention and, hence, deprived of their liberty, they together with over forty (40) other persons, who are at large having been accused, in the Court of First Instance of Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and that Angelo delos Reyes and Teresito Sison, intervenors in said L-33964, L-33965 and L-33973, are, likewise, still detained and have been charged together with over fifteen (15) other persons, who are, also, at large with another violation of said Act, in a criminal complaint filed with the City Fiscal's Office of Quezon City. With respect to Vicente Ilao and Juan Carandang petitioners in L33965 who were released as early as August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who were released on November 13, 1971, and are no longer deprived of their liberty, their respective petitions have, thereby, become moot and academic, as far as their prayer for release is concerned, and should, accordingly, be dismissed, despite the opposition thereto of counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as long as the privilege of the writ remains suspended, these petitioners might be arrested and detained again, without just cause, and that, accordingly, the issue raised in their respective petitions is not moot. In any event, the common constitutional and legal issues raised in these cases have, in fact, been decided in this joint decision. Must we order the release of Rodolfo del Rosario, one of the petitioners in L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-33965 and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who are still detained? The suspension of the privilege of the writ was decreed by Proclamation No. 889, as amended, for persons detained "for the crimes of insurrection or rebellion and other overt acts committed by them in furtherance thereof." The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe, Angelo de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-1623 of the Court of First Instance of Rizal with a violation of the Anti-Subversion Act and that the similar charge against petitioners Angelo de los Reyes and Teresito Sison in a criminal complaint, originally filed with the City Fiscal of Quezon City, has, also, been filed with said court. Do the offenses so charged constitute one of the crimes or overt acts mentioned in Proclamation No. 889, as amended? In the complaint in said Criminal Case No. 1623, it is alleged: That in or about the year 1968 and for sometime prior thereto and thereafter up to and including August 21, 1971, in the city of

Quezon, Philippines, and elsewhere in the Philippines, within the jurisdiction of this Honorable Court, the above-named accused knowingly, wilfully and by overt acts became officers and/or ranking leaders of the Communist Party of the Philippines, a subversive association as defined by Republic Act No. 1700, which is an organized conspiracy to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a communist totalitarian regime subject to alien domination and control; That all the above-named accused, as such officers and/or ranking leaders of the Communist Party of the Philippines conspiring, confederating and mutual helping one another, did then and there knowingly, wilfully, and feloniously and by overt acts committed subversive acts all intended to overthrow the government of the Republic of the Philippines, as follows: 1. By rising publicly and taking arms against the forces of the government, engaging in war against the forces of the government, destroying property or committing serious violence, exacting contributions or diverting public lands or property from the law purposes for which they have been appropriated; 2. By engaging by subversion thru expansion and requirement activities not only of the Communist Party of the Philippines but also of the united front organizations of the Communist Party of the Philippines as the Kabataang Makabayan (KM), Movement for the Democratic Philippines (MDP), Samahang Demokratikong Kabataan (SDK), Students' Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student Cultural Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid ng Pilipinas (PMP) and many others; thru agitation promoted by rallies, demonstration and strikes some of them violent in nature, intended to create social discontent, discredit those in power and weaken the people's confidence in the government; thru consistent propaganda by publications, writing, posters, leaflets of similar means; speeches, teach-ins, messages, lectures or other similar means; or thru the media as the TV, radio or newspapers, all intended to promote the Communist pattern of subversion; 3. Thru urban guerilla warfare characterized by assassinations, bombings, sabotage, kidnapping and arson, intended to advertise the movement, build up its morale and prestige, discredit and demoralize the authorities to use harsh and repressive measures, demoralize the people and weaken their confidence in the government and to weaken the will of the government to resist. That the following aggravating circumstances attended the commission of the offense: a. That the offense was committed in contempt of and with insult to the public authorities;

b. That some of the overt acts were committed in the Palace of the Chief Executive; c. That craft, fraud, or disguise was employed; d. That the offense was committed with the aid of armed men; e. That the offense was committed with the aid of persons under fifteen(15) years old. Identical allegations are made in the complaint filed with the City Fiscal of Quezon City, except that the second paragraph thereof is slightly more elaborate than that of the complaint filed with the CFI, although substantially the same. 26 In both complaints, the acts imputed to the defendants herein constitute rebellion and subversion, of in the language of the proclamation "other overt acts committed ... in furtherance" of said rebellion, both of which are covered by the proclamation suspending the privilege of the writ. It is clear, therefore, that the crime for which the detained petitioners are held and deprived of their liberty are among those for which the privilege of the writ of habeas corpus has been suspended. Up to this point, the Members of the Court are unanimous on the legal principles enunciated. After finding that Proclamation No. 889, as amended, is not invalid and that petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are detained for and actually accused of an offense for which the privilege of the writ has been suspended by said proclamation, our next step would have been the following: The Court, or a commissioner designated by it, would have received evidence on whether as stated in respondents' "Answer and Return" said petitioners had been apprehended and detained "on reasonable belief" that they had "participated in the crime of insurrection or rebellion." It is so happened, however, that on November 13, 1971 or two (2) days before the proceedings relative to the briefing held on October 28 and 29, 1971, had been completed by the filing 27 of the summary of the matters then taken up the aforementioned criminal complaints were filed against said petitioners. What is more, the preliminary examination and/or investigation of the charges contained in said complaints has already begun. The next question, therefore, is: Shall We now order, in the cases at hand, the release of said petitioners herein, despite the formal and substantial validity of the proclamation suspending the privilege, despite the fact that they are actually charged with offenses covered by said proclamation and despite the aforementioned criminal complaints against them and the preliminary examination and/or investigations being conducted therein? The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and, so hold, that, instead of this Court or its Commissioner taking the evidence adverted to above, it is best to let said preliminary examination and/or investigation to be completed, so that petitioners' released could be ordered by the court of first instance, should it find that there is no probable cause against them, or a warrant for their arrest could be issued, should a probable cause be established against them. Such course of action is more favorable to the petitioners, inasmuch as the preliminary examination or investigation requires a greater quantum of proof than that needed to establish that the Executive had not acted arbitrary in causing the petitioners to be apprehended and detained upon the ground that they had participated in the commission of the crime of insurrection or rebellion. And, it is mainly for the reason that the Court has opted to allow the Court of First Instance of Rizal to

proceed with the determination of the existence of probable cause, although ordinarily the Court would have merely determined the existence of the substantial evidence of petitioners' connection with the crime of rebellion. Besides, the latter alternative would require the reception of evidence by this Court and thus duplicate the proceedings now taking place in the court of first instance. What is more, since the evidence involved in the same proceedings would be substantially the same and the presentation of such evidence cannot be made simultaneously, each proceeding would tend to delay the other. Mr. Justice Fernando is of the opinion in line with the view of Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to the effect that "... if and when formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern ..." that the filing of the abovementioned complaint against the six (6) detained petitioners herein, has the effect of the Executive giving up his authority to continue holding them pursuant to Proclamation No. 889, as amended, even if he did not so intend, and to place them fully under the authority of courts of justice, just like any other person, who, as such, cannot be deprived of his liberty without lawful warrant, which has not, as yet, been issued against anyone of them, and that, accordingly, We should order their immediate release. Despite the humanitarian and libertarian spirit with which this view had been espoused, the other Members of the Court are unable to accept it because: (a) If the proclamation suspending the privilege of the writ of habeas corpus is valid and We so hold it to be and the detainee is covered by the proclamation, the filing of a complaint or information against him does not affect the suspension of said privilege, and, consequently, his release may not be ordered by Us; (b) Inasmuch as the filing of a formal complaint or information does not detract from the validity and efficacy of the suspension of the privilege, it would be more reasonable to construe the filing of said formal charges with the court of first instance as an expression of the President's belief that there are sufficient evidence to convict the petitioners so charged and that hey should not be released, therefore, unless and until said court after conducting the corresponding preliminary examination and/or investigation shall find that the prosecution has not established the existence of a probable cause. Otherwise, the Executive would have released said accused, as were the other petitioners herein; (c) From a long-range viewpoint, this interpretation of the act of the President in having said formal charges filed is, We believe, more beneficial to the detainees than that favored by Mr. Justice Fernando. His view particularly the theory that the detainees should be released immediately, without bail, even before the completion of said preliminary examination and/or investigation would tend to induce the Executive to refrain from filing formal charges as long as it may be possible. Manifestly, We should encourage the early filing of said charges, so that courts of justice could assume jurisdiction over the detainees and extend to them effective protection. Although some of the petitioners in these cases pray that the Court decide whether the constitutional right to bail is affected by the suspension of the privilege of the writ of habeas corpus, We do not deem it proper to pass upon such question, the same not having been sufficiently discussed by the parties herein. Besides, there is no point in settling said question with respect to petitioners herein who have been released. Neither is necessary to express our view thereon, as regards those still detained, inasmuch as their release without bail might still be decreed by the court of first instance, should it hold that there is no probable cause against them. At any rate, should an actual issue on the right to bail arise later, the same may be brought up in appropriate proceedings. WHEREFORE, judgment is hereby rendered:

1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as amended, and that, accordingly, the same is not unconstitutional; 2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and L-34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned; 3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in conducting the preliminary examination and/or investigation of the charges for violation of the Anti-Subversion Act filed against herein petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the corresponding warrants of arrest, if probable cause is found to exist against them, or, otherwise, to order their release; and 4. Should there be undue delay, for any reason whatsoever, either in the completion of the aforementioned preliminary examination and/or investigation, or in the issuance of the proper orders or resolution in connection therewith, the parties may by motion seek in these proceedings the proper relief. 5. Without special pronouncement as to costs. It is so ordered. Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 92649 February 14, 1991 SPOUSES LEONOR and ROSA BADUA, petitioners, vs. CORDILLERA BODONG ADMINISTRATION, CORDILLERA PEOPLE'S LIBERATION ARMY, MANUEL TAO-IL, AMOGAO-EN KISSIP, DALALO ILLIQUES, JUANITO GAYYED, PEDRO CABANTO, VICENTE DAYEM and DAVID QUEMA, respondents. GRIO-AQUINO, J.:p Whether a tribal court of the Cordillera Bodong Administration can render a valid and executory decision in a land dispute is the legal issue presented by this petition. The petitioners, spouses Leonor and Rosa Badua, allegedly own a farm land in Lucaga, Lumaba, Villaviciosa, Abra. In July 1989, they were forcibly ejected from the land by virtue of a "decision" of the Cordillera Bodong Administration in Case No. O, entitled "David Quema vs. Leonor Badua." The factual background of the case, as recited in the undated "decision" (Annex A, translation is Annex A-1) is as follows: In 1966, Quema, as the owner of two parcels of land in Lucaga, Lumaba, Villaviciosa, Abra, evidenced by Tax Declarations Nos. 4997 and 4998 mortgaged said parcels of land for P6,000 to Dra. Erotida Valera. He was able to redeem the land twenty-two (22) years later, on August

14, 1988, long after the mortgagee had already died. He allegedly paid the redemption price of P10,000 to the mortgagee's heir, Jessie Macaraeg. On the other hand, Rosa Badua, alleged that the land was sold to her by Dra. Erotida Valera when she was still alive. However, Rosa could not produce the deed of sale because it is allegedly in the possession of Vice-Governor Benesa. As Quema was prevented by Rosa Badua from cultivating the land, he filed a case before the Barangay Council, but it failed to settle the dispute, A certain Judge Cacho advised Quema to file his complaint in the provincial level courts. Instead, Quema filed it in the tribal court of the Maeng Tribe. The tribal court conducted a trial on February 19, 1989 and rendered the following decision: 9. The Maeng Tribal Court, therefore, decides to give the land to DAVID QUEMA and ROSA BADUA and her husband must pay the persons to whom they mortgaged the said land. The Maeng Tribal Court also decides that ROSA BADUA and her husband must reimburse the expenses of DAVID QUEMA in following-up the land case amounting to P2,000.00. The Maeng Tribal Court further decides to penalize ROSA BADUA and her husband in the amount of P5,000.00 for telling the lie that they bought this land from the late DRA. EROTIDA VALERA; for misleading the Maeng Tribal Court which handled the continuation of this case here in Bangued, CBA Provincial Office where they failed to make an appearance; and their illegal acquisition of the said parcel of land. This decision is based on the "PAGTA." (pp. 16-17, Rollo.) When Leonor and Rosa Badua did not immediately vacate the land, they received on June 30, 1989 a "warning order" from Ka Blantie, Zone Commander, Abra Zone-1 of the Cordillera People's Liberation Army, thus: WARNING ORDER Mr. & MRS. LEONOR BADUA A last warning from the armed CPLA of the CBA reiterates the order that you not to interfere any longer with the parcels of land decided in favor of DAVID QUEMA as per "Court Order" of the Maeng Tribal Court. You are also to pay back the expenses he incurred for the case amounting to P2,000.00 and your fine of P5,000.00. Non-compliance of the said decision of the Court and any attempt to bring this case to another Court will force the CPLA to settle the matter, in which case, you will have no one to blame since the case has been settled. (p. 20, Rollo.) Fearful for his life, Leonor Badua went into hiding. In September 1989, his wife, Rosa, was arrested by the Cordillera People's Liberation Army and detained for two days.

On April 2, 1990, the Baduas filed this petition "for Special and Extraordinary Reliefs" (which may be treated as a petition for certiorari and prohibition) praying that: 1. a writ of preliminary injunction be issued to stop the respondents from enforcing the decision of the Cordillera Bodong Administration during the pendency of this case; 2. the respondents be prohibited from usurping judicial power and hearing cases; and 3. the legal personality of the Cordillera Bodong Administration and Cordillera People's Liberation Army be clarified. Petitioners allege that the decision of the Cordillera Bodong Administration is null and void because: 1. petitioners were denied due process or formal hearing; and 2. the Cordillera Bodong Administration has no judicial power nor jurisdiction over the petitioners nor over the private respondent as neither of them are members of the Maeng Tribe. Upon receipt of the petition, the Court on April 5, 1990 required the respondents to comment, but, unable to serve said resolution on the respondents, the court requested the Philippine Constabulary Commander of the Cordillera Region to do it. Respondents through counsel, Atty. Demetrio V. Pre, filed their comment on October 26, 1990. They alleged that: the Maeng Tribe is a cultural minority group of Tingguians inhabiting the interior mountain town of Villaviciosa, Abra. The tribe is a part of the Cordillera Bodong Association or Administration whose military arm is the Cordillera People's Liberation Army. The tribal court, or council of elders, is composed of prominent and respected residents in the locality. It decides and settles all kinds of disputes more speedily than the regular courts, without the intervention of lawyers. Respondents further allege that the proceedings and decisions of the tribal courts are respected and obeyed by the parties, the municipal and barangay officials, and the people in the locality, ostracism being the penalty for disobedience of, or non-compliance with, the decisions of the council of elders in the areas where tribal courts operate. Respondents contend that the Supreme Court has no jurisdiction over the tribal courts because they are not a part of the judicial system. Respondents concede that if the petitioners "want to test the wisdom of the decision of the council of elders," the petitioners should file the necessary suit, not in the Supreme Court, but in the trial courts where evidence can be presented. Respondents pray that the decision of the tribal court be maintained and the petition for certiorari and prohibition be dismissed. After deliberating on the petition and the comment thereon of the respondents, which the Court decided to treat as the latter's answer, the Court finds the petition to be meritorious, hence, resolved to grant the same. In Cordillera Regional Assembly Member Alexander P. Ordillo, et al. vs. The Commission on Elections, et al., G.R. No. 93054, December 4, 1990, the Court en banc, found that in the plebiscite that was held on January 23, 1990 pursuant to Republic Act 6766, the creation of

the Cordillera Autonomous Region was rejected by all the provinces and city * of the Cordillera region, except Ifugao province, hence, the Cordillera Autonomous Region did not come to be. Resolution No. 2259 of the Commission on Elections, insofar as it upholds the creation of an autonomous region, the February 14, 1990 memorandum of the Secretary of Justice, the February 5, 1990 memorandum of the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 are declared null and void while Executive Order No. 220 is declared to be still in force and effect until properly repealed or amended. As a logical consequence of that judicial declaration, the Cordillera Bodong Administration created under Section 13 of Executive Order No. 220, the indigenous and special courts for the indigenous cultural communities of the Cordillera region (Sec. 1, Art. VII, Rep. Act 6766), and the Cordillera People's Liberation Army as a regional police force or a regional command of the Armed Forces of the Philippines (Secs. 2 and 4, Article XVIII of R.A. 6766), do not legally exist. Since the Cordillera Autonomous Region did not come into legal existence, the Maeng Tribal Court was not constituted into an indigenous or special court under R.A. No. 6766. Hence, the Maeng Tribal Court is an ordinary tribal court existing under the customs and traditions of an indigenous cultural community. Such tribal courts are not a part of the Philippine judicial system which consists of the Supreme Court and the lower courts which have been established by law (Sec. 1, Art. VIII, 1987 Constitution). They do not possess judicial power. Like the pangkats or conciliation panels created by P.D. No. 1508 in the barangays, they are advisory and conciliatory bodies whose principal objective is to bring together the parties to a dispute and persuade them to make peace, settle, and compromise. An amicable settlement, compromise, and arbitration award rendered by a pangkat, if not seasonably repudiated, has the force and effect of a final judgment of a court (Sec. 11, P.D. 1508), but it can be enforced only through the local city or municipal court to which the secretary of the Lupon transmits the compromise settlement or arbitration award upon expiration of the period to annul or repudiate it (Sec. 14, P.D. 1508). Similarly, the decisions of a tribal court based on compromise or arbitration, as provided in P.D. 1508, may be enforced or set aside, in and through the regular courts today. WHEREFORE, finding the petition to be meritorious, the same is hereby GRANTED. The decision rendered on February 18, 1989 by the Maeng Tribal Court in Case No. 0, entitled "David Quema vs. the Leonor Badua," is hereby annulled for lack of jurisdiction. The respondents Cordillera Bodong Administration, Cordillera People's Liberation Army, Manuel Tao-il, Amogao-en Kissip, Dalalo Illiques, Juanita Gayyed, Pedro Cabanto, Vicente Dayem and David Quema, are hereby ordered to cease and desist from implementing said decision, without prejudice to the filing of an appropriate action by the parties in the proper competent courts of the land as provided by law. Costs against the respondents. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

ROMAN C. TUASON and REMEDIOS V. TUASON, by Attorney-in-Fact, TRINIDAD S. VIADO, Petitioners, G. R. No. 70484 January 29, 1988 -versus-

[2] until the price was fully paid, however, title was reserved in the Government, and any sale or encumbrance made by the purchaser prior to such full payment was explicitly declared to "be invalid as against the Government and, in all respects, subordinate to its prior claim;" [3] in the event of default by a purchaser to pay any installment of purchase money and interest thereon, the Chief of the Bureau of Public Lands [now Director of Lands] had the duty at once to protect the Government from loss by bringing suit to obtain judicial authority to enforce the Government's lien on the property and by selling it in the same manner as for foreclosure of mortgages, the purchaser at such sale being deemed to acquire a good and indefeasible title, and the proceeds of the sale being applied to the payment of the costs of the court and all installments due or to become due; and [4] in the event of completion of payment, the Government transferred title to the land to the purchaser "by proper instrument of conveyance", the certificate of title over the land to issue and become effective in the manner provided by the Land Registration Act.[1] Said Presidential Decree No. 293 made the finding[2] that Carmel had failed to complete payment of the price. It adjudged that: According to the records of the Bureau of Lands, neither the original purchasers nor their subsequent transferees have made full payment of all installments of the purchase money and interest on the lots claimed by the Carmel Farms, Inc., including those on which the dwellings of the members of said Association[3] stand. Hence, title to said land has remained with the Government and the land now occupied by the members of said Association has never ceased to form part of the property of the Republic of the Philippines, any and all acts affecting said land and purporting to segregate it from the said property of the Republic of the Philippines being, therefore, null and void ab initio as against the law and public policy. Upon this adjudgment, Mr. Marcos invalidated the titles of Carmel Farms, Inc. and all those derived therefrom, and declared as aforestated "the members of the Malacanang Homeowners Association, Inc. the present bona fide occupants" of the lots which, in consequence, thereby became open to them for "disposition and sale pursuant to Commonwealth Act No. 32, as amended."[4] It seems to have completely escaped Mr. Marcos' attention that his Decree contained contradictory declarations. While acknowledging, on the one hand, that the lots in the Carmel Subdivision were occupied by the buyers thereof, and in fact the latter's dwellings stood thereon, he states on the other that the "members of the Malacanang Homeowners Association, Inc. [are] the present bona fide occupants" of all said lots. The latter averment is not only essentially inconsistent with the former but is both a physical and legal fallacy. Well-known is the rule of physics that two objects cannot occupy the same space at the same time. And the absurdity of the subsumed proposition is self-evident for persons not in possession of land, who probably have not even set foot thereon, cannot be deemed "occupants" thereof, much less "bona fide" occupants. But this notwithstanding and upon the factual premise already indicated, Mr. Marcos disposed of the land of the petitioner spouses and others similarly situated as they, in the following imperious manner: NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby order and decree that any and all sales contracts between the government and the original purchasers, are hereby cancelled, and those between the latter and the subsequent transferees, and any and all transfers thereafter, covering Lots 979, 981, 982, 985, 988, 989, 990, 991 new, 1226, 1228, 1230, and 980-C-2 [LRC PSD-1730], all of Tala Estate, Caloocan City, are hereby declared invalid and null and void ab initio as against the Government; that Transfer

REGISTER OF DEEDS, CALOOCAN CITY, MINISTRY OF JUSTICE, and THE NATIONAL TREASURER, Respondents. TOMASA BARTOLOME, in Her Own Behalf and in Behalf of the Other Members of the CONSUELO HEIGHTS HOMEOWNERS ASSOCIATION, Petitioners-Intervenors.

DECISION NARVASA, J.: A more despotic, capricious, oppressive and unjustifiable exercise of government power than that manifested in this case can scarcely be found in the sordid annals of the Martial Law regime. Relief to the victims must be, as it is hereby, extended by the grant to them of the extraordinary writ of certiorari and prohibition condemning as unconstitutional, and annulling and perpetually enjoining the acts complained of. Petitioner spouses, the Tuasons, were retired public school teachers. On April 6, 1965, with funds pooled from their retirement benefits and savings, they bought from Carmel Farms, Inc. [hereafter simply, Carmel] a piece of land measuring about 8,756 square meters, in the latter's subdivision in Barrio Makatipo, Caloocan City. In virtue of this sale, Carmel's Torrens Title [No. 64007] over the lot was cancelled and a new one [ No. 8314] issued in the name of the Tuasons. The Tuasons took possession of their property. Some eight [8] years thereafter, the Tuasons' travails began. They woke up one morning to discover that by presidential flat, they were no longer the owners of the land they had purchased with their hard-earned money, and that their land and the other lots in the subdivision had been "declared open for disposition and sale to the members of the Malacanang Homeowners Association, Inc., the present bona fide occupants thereof." On September 14, 1973, a year almost to the day after the declaration of Martial Law, Mr. Ferdinand Marcos, then president of the country, invoking his emergency powers, issued Presidential Decree No. 293 with immediate effect. The Decree invalidated, inter alia, the title of the Tuasons' vendor, Carmel, which had earlier purchased from the Government the land it had subsequently subdivided into several lots for sale to the public[(the Tuasons being among the buyers]. The land bought by Carmel was part of the Tala Estate [one of the so-called "Friar Lands"]. Carmel had bought the land under Act No. 1120 and C.A. No. 32, as amended. Under these statutes: [1] a bona fide settler or occupant was allowed to purchase [if he did not wish to lease] the portion occupied by him at the price fixed by the Government, in cash or on installment; the interested buyer was given a certificate of sale, which was regarded as an agreement by him to pay the purchase price in the and at the interest specified, the acceptance of such certificate making the occupant a debtor of the government;

Certificates of Title Nos. 62603, 62604, 62605, covering Lots 1, 2 and 3, PCS-4383, all in the name of Carmel Farms, Inc., which are a consolidation and subdivision survey of the lots hereinbefore enumerated, are declared invalid and considered cancelled as against the Government; and that said lots are declared open for disposition and sale to the members of the Malacanang Homeowners Association, Inc., the present bona fide occupants thereof, pursuant to Commonwealth Act No. 32, as amended. On the strength of this Presidential Decree, the Register of Deeds of Caloocan City caused the inscription on the Tuasons' title, TCT No. 8314, of the following: MEMORANDUM. Pursuant to Presidential Decree No. 293, this Certificate of Title is declared invalid and null and void ab initio and considered cancelled as against the Government and the property described herein is declared open for disposition and sale to the members of the Malacanang Homeowners Association, Inc. The Tuason Spouses thereupon filed with this Court a petition for certiorari assailing the Marcos Decree as an arbitrary measure which deprived them of their property in favor of a selected group, in violation not only of the constitutional provisions on due process and eminent domain[5] but also of the provisions of the Land Registration Act on the indefeasibility of Torrens titles; [6] and they prayed that the Register of Deeds be directed to cancel the derogatory inscription on their title and restore its efficacy, or in the alternative, that they be compensated for the loss from the Assurance Fund. Mr. Marcos' Solicitor General sought to sustain the Decree. In his Comment on the Petition, [7] he questioned the propriety of the remedy of certiorari resorted to by the petitioners, it not appearing that the public respondents were being sued as judicial or quasi-judicial officers who had acted without or in excess of their jurisdiction, or with grave abuse of discretion. He opined that the petitioner spouses had no cause to complain of unjust deprivation of property because in legal contemplation, [8] they had never become owners thereof because of non-payment of the purchase price by their predecessor-in-interest; and the Decree was justifiable under the social justice clause of the Constitution and the police power, being in response to the pressing housing need of the employees of the Office of the President who were left homeless and landless after they were asked to vacate Malacanang Park where they had theretofore been residing. He expressed the view, too, that petitioner spouses were not entitled to recover anything from the Assurance Fund. Petitions for intervention have of late been filed by sixty-four [64] persons, members of the "Consuelo Heights Homeowners Association" headed by Tomasa Bartolome, on the claim that they, too, had been divested of their lands by the same Presidential Decree No. 293, adopting as their own, the allegations and prayer embodied in the Tuasons' petition. The procedural issue is quite easily disposed of. It is true that the extraodinary writ of certiorari[9] may properly issue to nullify only judicial or quasi-judicial acts, unlike the writ of prohibition which may be directed against acts either judicial or ministerial. Section 1, Rule 65 of the Rules of Court deals with the writ of certiorari in relation to "any tribunal, board or officer exercising judicial functions, while Section 2 of the same Rule treats of the writ of prohibition in relation to "proceedings of any tribunal, corporation, board, or person exercising functions judicial or ministerial." But the petition will be shown upon analysis to be in reality directed against an unlawful exercise of judicial power. The Decree reveals that Mr. Marcos exercised an obviously judicial function. He made a determination of facts and applied the law to those facts, declaring what the legal rights of the parties were in the premises. These acts essentially constitute a judicial function, [10] or an exercise of jurisdiction which is the power and authority to hear or try and decide or determine a cause.[11] He adjudged it to be an established fact that neither the original purchasers nor their subsequent transferees have made full payment of all installments of the purchase money and interest on the lots claimed by Carmel Farms, Inc., including those on which the dwellings of the members of the Association [of homeowners] stand." And applying the law to that situation, he made the adjudication that "title to said land has remained with the Government, and the land now occupied by the members

of said association has never ceased to form part of the property of the Republic of the Philippines," and that "any and all acts affecting said land and purporting to segregate it from the said property of the Republic were null and void ab initio as against the law and public policy." These acts may thus be properly struck down by the writ of certiorari because done by an officer in the performance of what in essence is a judicial function, if it be shown that the acts were done without or in excess of jurisdiction, or with grave abuse of discretion. Since Mr. Marcos was never vested with judicial power, such power, as everyone knows, being vested in the Supreme Court and such inferior courts as may be established by law,[12] the judicial acts done by him were in the circumstances indisputably perpetrated without jurisdiction. The acts were completely alien to his office as Chief Executive and utterly beyond the permissible scope of the legislative power that he had assumed as head of the Martial Law regime. Moreover, he had assumed to exercise power i.e., determined the relevant facts and applied the law thereto without a trial at which all interested parties were accorded the opportunity to adduce evidence to furnish the basis for a determination of the facts material to the controversy. He made the finding ostensibly on the basis of "the records of the Bureau of Lands." Prescinding from the fact that there is no indication whatever the nature and reliability of these records and that they are in no sense conclusive, it is undeniable that the petitioner Tuasons [and the petitioners in intervention] were never confronted with those records and afforded a chance to dispute their trustworthiness and present countervailing evidence. This is yet another fatal defect. The adjudication was patently and grossly violative of the right to due process to which the petitioners are entitled in virtue of the Constitution. Mr. Marcos, in other words, not only arrogated unto himself a power never granted to him by the Constitution or the laws but had, in addition, exercised it unconstitutionally. In any event, this Court has it in its power to treat the Petition for Certiorari as one for Prohibition if the averments of the former sufficiently made out a case for the latter. [13] Considered in this wise, it will also appear that an executive officer had acted without jurisdiction, exercised judicial power not granted to him by the Constitution or the laws, and had, furthermore, performed the act in violation of the constitutional rights of the parties thereby affected. The Court will grant such relief as may be proper and efficacious in the premises even if not specifically sought or set out in the prayer of the appropriate pleading, the permissible relief being determined after all not by the prayer but by the basic averments of the parties' pleadings.[14] There is no dispute about the fact that title to the land purchased by Carmel was actually issued to it by the Government. This, of course, gives rise to the strong presumption that official duty has been regularly performed, [15] that official duty being in this case the ascertainment by the Chief of the Bureau of Public Lands of the fulfillment of the condition prescribed by law for such issuance, i.e., the payment in full of the price, together with all accrued interest. Against this presumption, there is no evidence. It must, hence, be accorded full sway in these proceedings. Furthermore, the title having been duly issued to Carmel, it became "effective in the manner provided in Section one hundred and twenty-two of the Land Registration Act."[16] It may well be the fact that Carmel really did fail to make full payment of the price of the land purchased by it from the Government pursuant to the provisions of Act 1120. This is a possibility that cannot be totally discounted. If this be the fact, the Government may bring suit to recover the unpaid installments and interest, invalidate any sale or encumbrance involving the land subject of the sale, and enforce the lien of the Government against the land by selling the same in the manner provided by Act Numbered One Hundred and Ninety for the foreclosure of mortgages. [17] This it can do, despite the lapse of a considerable period of time. Prescription does not lie against the Government. But until and unless such a suit is brought and results in a judgment favorable to the Government, the acquisition of title by Carmel and the purchases by the petitioners and the petitioners-intervenors from it of portions of the land covered by its original title must be respected. At any rate, the eventuation of that contingency will not and cannot in any manner affect this Court's

conclusion, herein affirmed, of the unconstitutionality and invalidity of Presidential Decree No. 293, and the absolute lack of any right to the land or any portion thereof on the part of the members of the so-called "Malacanang Homeowners Association, Inc." The Decree was not as claimed a licit instance of the application of social justice principles or the exercise of police power. It was in truth a disguised, vile stratagem deliberately resorted to favor a few individuals, in callous and disdainful disregard of the rights of others. It was, in reality, a taking of private property without due process and without compensation whatever, from persons relying on the indefeasibility of their titles in accordance with and as explicitly guaranteed by law. One last word respecting the petitioners in intervention. Their petition to intervene substantially fulfilled the requirements laid down for a class suit[18] and was consequently given due course by the Court. They are, therefore, covered by this judgment. WHEREFORE, Presidential Decree No. 293 is declared to be unconstitutional and void ab initio in all its parts. The public respondents are commanded to cancel the inscription on the titles of the petitioners and the petitioners in intervention of the memorandum declaring their titles null and void and declaring the property therein respectively described open for disposition and sale to the members of the Malacanang Homeowners Association, Inc. to do whatever else is needful to restore the titles to full effect and efficacy; and henceforth, to refrain, cease and desist from implementing any provision or part of said Presidential Decree No. 293. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 96681 December 2, 1991 HON. ISIDRO CARIO, in his capacity as Secretary of the Department of Education, Culture & Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of Manila, petitioners, vs. THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents.

this Court 2 or otherwise undisputed on the record, are hereunder set forth. 1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among them members of the Manila Public School Teachers Association (MPSTA) and Alliance of Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to "dramatize and highlight" their plight resulting from the alleged failure of the public authorities to act upon grievances that had time and again been brought to the latter's attention. According to them they had decided to undertake said "mass concerted actions" after the protest rally staged at the DECS premises on September 14, 1990 without disrupting classes as a last call for the government to negotiate the granting of demands had elicited no response from the Secretary of Education. The "mass actions" consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their representatives, the teachers participating in the mass actions were served with an order of the Secretary of Education to return to work in 24 hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate dismissal proceedings against those who did not comply and to hire their replacements. Those directives notwithstanding, the mass actions continued into the week, with more teachers joining in the days that followed. 3 Among those who took part in the "concerted mass actions" were the eight (8) private respondents herein, teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-political demands of the MPSTA. 4 2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were administratively charged on the basis of the principal's report and given five (5) days to answer the charges. They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D. 807" and temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation committee was consequently formed to hear the charges in accordance with P.D. 807. 5 3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named respondents, 6 the latter filed separate answers, opted for a formal investigation, and also moved "for suspension of the administrative proceedings pending resolution by . . (the Supreme) Court of their application for issuance of an injunctive writ/temporary restraining order." But when their motion for suspension was denied by Order dated November 8, 1990 of the Investigating Committee, which later also denied their motion for reconsideration orally made at the hearing of November 14, 1990, "the respondents led by their counsel staged a walkout signifying their intent to boycott the entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cario dated December 17, 1990, rendered after evaluation of the evidence as well as the answers, affidavits and documents submitted by the respondents, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo. 8 4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of Manila against petitioner (Cario), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA went to the Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on the) alleged violation of the striking teachers" right to due process and peaceable assembly docketed as G.R. No. 95445, supra. The ACT also filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590." 9 Both petitions in this Court were filed in behalf of the teacher associations, a few named individuals, and "other teacher-members so numerous similarly situated" or "other similarly situated public school teachers too numerous to be impleaded."

NARVASA, J.:p The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the Solicitor General, may be formulated as follows: where the relief sought from the Commission on Human Rights by a party in a case consists of the review and reversal or modification of a decision or order issued by a court of justice or government agency or official exercising quasi-judicial functions, may the Commission take cognizance of the case and grant that relief? Stated otherwise, where a particular subject-matter is placed by law within the jurisdiction of a court or other government agency or official for purposes of trial and adjudgment, may the Commission on Human Rights take cognizance of the same subjectmatter for the same purposes of hearing and adjudication? The facts narrated in the petition are not denied by the respondents and are hence taken as substantially correct for purposes of ruling on the legal questions posed in the present action. These facts, 1 together with others involved in related cases recently resolved by

5. In the meantime, too, the respondent teachers submitted sworn statements dated September 27, 1990 to the Commission on Human Rights to complain that while they were participating in peaceful mass actions, they suddenly learned of their replacements as teachers, allegedly without notice and consequently for reasons completely unknown to them. 10 6. Their complaints and those of other teachers also "ordered suspended by the . . . (DECS)," all numbering forty-two (42) were docketed as "Striking Teachers CHR Case No . 90775." In connection therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a subpoena to Secretary Cario requiring his attendance therein. 11 On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cario) received the subpoena which was served at his office, . . . (the) Commission, with the Chairman presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the case;" it heard the complainants' counsel (a) explain that his clients had been "denied due process and suspended without formal notice, and unjustly, since they did not join the mass leave," and (b) expatiate on the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants) sympathize." 12 The Commission thereafter issued an Order 13 reciting these facts and making the following disposition: To be properly apprised of the real facts of the case and be accordingly guided in its investigation and resolution of the matter, considering that these forty two teachers are now suspended and deprived of their wages, which they need very badly, Secretary Isidro Cario, of the Department of Education, Culture and Sports, Dr. Erlinda Lolarga, school superintendent of Manila and the Principal of Ramon Magsaysay High School, Manila, are hereby enjoined to appear and enlighten the Commission en banc on October 19, 1990 at 11:00 A.M. and to bring with them any and all documents relevant to the allegations aforestated herein to assist the Commission in this matter. Otherwise, the Commission will resolve the complaint on the basis of complainants' evidence. xxx xxx xxx 7. Through the Office of the Solicitor General, Secretary Cario sought and was granted leave to file a motion to dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging as grounds therefor, "that the complaint states no cause of action and that the CHR has no jurisdiction over the case." 14 8. Pending determination by the Commission of the motion to dismiss, judgments affecting the "striking teachers" were promulgated in two (2) cases, as aforestated, viz.: a) The Decision dated December l7, 1990 of Education Secretary Cario in Case No. DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo; 15 and b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and 95590 dismissing the petitions "without prejudice to any appeals, if still timely, that the individual petitioners may take to the Civil Service Commission on the matters complained of," 16

and inter alia "ruling that it was prima facie lawful for petitioner Cario to issue return-towork orders, file administrative charges against recalcitrants, preventively suspend them, and issue decision on those charges." 17 9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cario's motion to dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten (10) days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits with or without respondents counter affidavit." 18 It held that the "striking teachers" "were denied due process of law; . . . they should not have been replaced without a chance to reply to the administrative charges;" there had been a violation of their civil and political rights which the Commission was empowered to investigate; and while expressing its "utmost respect to the Supreme Court . . . the facts before . . . (it) are different from those in the case decided by the Supreme Court" (the reference being unmistakably to this Court's joint Resolution of August 6, 1991 in G.R. Nos. 95445 and 95590, supra). It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf of petitioner Cario, has commenced the present action of certiorari and prohibition. The Commission on Human Rights has made clear its position that it does not feel bound by this Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends, in other words, to try and decide or hear and determine, i.e., exercise jurisdiction over the following general issues: 1) whether or not the striking teachers were denied due process, and just cause exists for the imposition of administrative disciplinary sanctions on them by their superiors; and 2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants) sympathize," justify their mass action or strike. The Commission evidently intends to itself adjudicate, that is to say, determine with character of finality and definiteness, the same issues which have been passed upon and decided by the Secretary of Education, Culture & Sports, subject to appeal to the Civil Service Commission, this Court having in fact, as aforementioned, declared that the teachers affected may take appeals to the Civil Service Commission on said matters, if still timely. The threshold question is whether or not the Commission on Human Rights has the power under the Constitution to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has jurisdiction or adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights. The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a

controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. 21 This function, to repeat, the Commission does not have. 22 The proposition is made clear by the constitutional provisions specifying the powers of the Commission on Human Rights. The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution, it succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of the Constitution. 24 Its powers and functions are the following 25 (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law. As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the Commission the power to investigate all forms of human rights

violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth. It may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its findings. 26 But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings. "Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." 27 The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." 29 "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." 30 And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . . ." 31 In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." 32 Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions, and return to their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by them; and (c) what

where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or omissions. These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education, being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the Civil Service Commission. Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and resolved them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service Commission; and even this Court itself has had occasion to pass upon said issues. 34 Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed "human rights violations involving civil and political rights," are matters which may be passed upon and determined through a motion for reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme Court. The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding into the jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no business going over the same ground traversed by the latter and making its own judgment on the questions involved. This would accord success to what may well have been the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education Secretary in the administrative cases against them which they anticipated would be adverse to them. This cannot be done. It will not be permitted to be done. In any event, the investigation by the Commission on Human Rights would serve no useful purpose. If its investigation should result in conclusions contrary to those reached by Secretary Cario, it would have no power anyway to reverse the Secretary's conclusions. Reversal thereof can only by done by the Civil Service Commission and lastly by this Court. The only thing the Commission can do, if it concludes that Secretary Cario was in error, is to refer the matter to the appropriate Government agency or tribunal for assistance; that would be the Civil Service Commission. 35 It cannot arrogate unto itself the appellate jurisdiction of the Civil Service Commission. WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET ASIDE, and the respondent Commission on Human Rights and the Chairman and Members thereof are prohibited "to hear and resolve the case ( i.e., Striking Teachers HRC Case No. 90-775) on the merits." SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-61259 April 26, 1983

LIONS CLUBS INTERNATIONAL and JAMES L. SO, petitioners, vs. HON. AUGUSTO M. AMORES, Presiding Judge of the Court of First Instance of Manila, Branch XXIV, COURT OF APPEALS and VICENTE JOSEFA, respondents. Marcia M. Magsino Law Office for petitioners. Arturo S. Santos for respondents. GUERRERO, J.: Where the Constitution of petitioner association, the Lions Clubs International, specifically provides that all Lions Clubs so organized shall be under the exclusive jurisdiction of the International Board of Directors (Sec. 5, Art. III) and that all District Governor election results shall be adopted by the International Board of Directors and thereby become effective, except in the case of an election protest filed or legal action resulting therefrom, in which event the appointment or election of such District Governor shall be subject to action by the International Board of Directors [Sec. 8(a), (1) 2nd par., Art. VII] and in accordance therewith, the election protest between petitioner So and respondent Josefa for the position of District Governor of District 301-Al Philippines for the fiscal year 1982-1983 was filed and elevated to the International Board of Directors through its Constitution and By-Laws Committee following the prescribed Constitutional Complaints Procedure and said Committee conducted a hearing therein attended by the parties, each claiming to be duly elected to the disputed position, the decision of the International Board of Directors adopting the Committee's Report and approving the election of petitioner James L. So to server as District Governor of District 301-Al for the fiscal year 1982-1983 is final, binding, and conclusive, it being a question of policy, discipline, and internal government in the relation of the mother organization with local clubs organized, chartered and supervised exclusively thereunder, absent any clear showing of mistake, fraud, conclusion or arbitrariness and, therefore, the basic matter in dispute in the instant petition as to who has the right to the contested office presents no justiciable controversy that necessitates judicial interference or intervention. The case at bar is a special civil action for certiorari, mandamus and prohibition with prayer to lift the restraining order issued by the Court of Appeals, (now the Intermediate Appellate Court) in CA-G.R. No. 14599- SP entitled "Vicente Josefa. Petitioner, versus Hon. Judge Augusto M. Amores, Lions Clubs International, and James L. So. Respondents." The principal adversaries in this controversy are respondent Vicente Josefa of the Manila Traders Lions Club and petitioner James L. So of the Manila Centrum Lions Club, which Lions clubs are duly organized, chartered, and affiliated with Lions Clubs International having its International offices at 300 22nd Street, Oakbrook, Illinois 60570, U.S.A. The Manila Traders Lions Club and the Manila Centrum Lions Club, together with other Lions clubs, are embraced and constituted into the newly organized District 301-Al. The Lions districts in the country form the so-called Multiple District 301,Philippines. All clubs so organized and chartered under the Constitution of Lions Clubs International are under the exclusive supervision of the International Board of Directors. The records show that on July 1, 1982, Vicente Josefa filed a complaint for Quo Warranto, Injunction, Damages with writ of preliminary injunction and prayer for temporary restraining order docketed as Civil Case No. 82-10588 in the Court of First Instance of Manila against Lions Clubs International and James L. So, defendants. alleging inter alia the following material and pertinent allegations: that Josefa and So filed their certificates of candidacy for the position of District Governor of District 301-Al for the fiscal year 1982-83; that before the elections, or on April 22, 1982, an agreement was executed between Josefa and So for the purpose of

avoiding an expensive, full-blown election contest, whereby the latter withdrew his certificate of candidacy in favor of Josefa; that said withdrawal of So was duly accepted by District 301-A through Governor Huang who affixed his signature to the aforesaid agreement; that however, news items were published conveying the Idea that So had not withdrawn from the gubernatorial race; that Gov. Huang informed Josefa that So had not filed a new certificate of candidacy and that the District did not recognize So as a candidate to any position; that a telex was sent to Lions Clubs International requesting information whether So was still a candidate after his withdrawal and Lions International admonished incumbent Governor Huang to enforce the Constitution and By-Laws of Multiple District 301 if the withdrawal was in fact made and accepted by the District. It was further alleged that on the day of the election, June 6, 1982, the Chairman of the Nominations Committee reported at the Plenary Session of the 33rd Multiple District Convention held at the Little Theater of the Olongapo High School, Olongapo City, that because of So's failure to file another certificate of candidacy, the District recognized only one candidate, Vicente Josefa, for Governor; that, however, some members of the Council of Past District Governors arbitrarily set aside said report and proclaimed So as a qualified candidate, which action was vigorously objected to by some Lions present in the Plenary Session on the ground that the session was not the proper quorum to deliberate and decide on the matter as some of those present were Lions and Lionesses who were not qualified to vote; that the Past District Governors dismissed the members of the Nomination Committee, Election Committee, and other committees incharge of the accreditation of votes and unlawfully appointed new members thereof. The complaint likewise alleged that during all this time, armed men by force and intimidation prevented known leaders and followers of Josefa from entering the Plenary Session; that forced by the deteriorated peace and order in the convention hall and by virtue of the powers vested in him by the State Council of Governors, as well as the Rules of Procedure, Gov. Huang through his Cabinet Secretary announced in the Plenary Session that he has changed the venue of the election from the Little Theater of the Olongapo High School to its new site at the ground floor of Admiral Hotel, also at Olongapo City; that to this transfer, Vice Chairman of the State Council of Governors, Gov. Ramon Beleno and the Secretary General of the hosting clubs Estanislao Cesa, Jr. made no objections, provided the cost of facilities of new venue is not shouldered by them. Plaintiff Josefa also alleged that So and some members of the Council of Past District Governors continued to hold and supervise an illegal election at the old site where voting and non-voting delegates and alternates were allowed to cast their votes without ballots, without ballot boxes and without the issuance of valid accreditation papers of the registered voting delegates; that in the meantime, at the election held at the Admiral Hotel Supervised by Gov. Huang, Josefa obtained 115 votes, a majority of the qualified voting delegates duly accredited, and was duly proclaimed as the Governor-elect of District 301-Al by the State Council of Governors; that, however, defendant Lions Clubs International unlawfully recognized So as the winner. And finally alleging that So would assume the powers and prerogatives of Governor of District 301-Al at the closing program of the International Convention on July 3, 1982, Josefa prayed for the issuance of a writ of preliminary injunction or at least a temporary restraining order. He likewise asked for moral damages and for attorney's fees. Finding the foregoing allegations of the complaint to be sufficient in form and substance, the Court of First Instance on the same date, July 1, 1982, issued a temporary restraining order enjoining So from assuming the powers and prerogatives of the office of Governor of District 301-Al, and Lions Clubs International, represented by

Antonio Ramos, from recognizing and proclaiming So as the Governor of District 301-Al for the fiscal year 1982- 1983. On July 8, 1982, defendants So and Lions Club International filed a Motion to Dismiss and to Lift Restraining Order on the grounds that: (1) the Court of First Instance had no jurisdiction over the person of the defendants or over the subject of the action or suit; (2) venue is improperly laid; and (3) there is another action pending between the same parties for the same cause. Plaintiff Josefa filed his Opposition, to which defendants filed a Reply. On July 26, 1982, the Court of First Instance issued an Order denying defendants' motion to dismiss. Finding the Motion to lift restraining order to be meritorious, the Court set aside said restraining order. Before the hearing on the application for a writ of preliminary injunction, Josefa filed in the Court of Appeals on July 29, 1982 a petition docketed as CA-G.R. No. 14599-SP for certiorari with preliminary and mandatory injunction and a prayer for a temporary restraining order, assailing that portion of the Order of the Court of First Instance dated July 26, 1982 lifting the restraining order. Josefa contended that by lifting said restraining order without awaiting the evidence on his petition for a writ of injunction, So would immediately assume the contested position, the very act sought to be enjoined, thereby making the action moot and academic and whatever favorable judgment may be rendered in the main action would be rendered useless and nugatory. The appellate court in a Resolution dated July 29, 1982 issued a temporary restraining order "restraining and prohibiting the respondents (Hon. Judge Augusto M. Amores, Lions Clubs International and James L. So) from implementing the questioned Order of July 26, 1982 issued in Civil Case No. 82-10588 particularly the portion thereof lifting the temporary restraining order issued by the respondent Judge on July 1, 1982 until further orders ... " Herein petitioners Lions Clubs International and James L. So now come to this Court attributing grave abuse of discretion to the Court of First Instance of Manila for the denial of their Motion to Dismiss dated July 6, 1982, and contending that the Court of Appeals acted in excess of its jurisdiction in issuing its temporary restraining order of July 29, 1982. As prayed for by said petitioners, We issued on August 4, 1982 a temporary restraining order enjoining the enforcement of the assailed temporary restraining order of the Court of Appeals. The basic issue posed for Our determination is the justiciability of the election dispute between herein petitioner James L. So and private respondent Vicente Josefa for the position of District Governor of District 301-Al Philippines. It is petitioners' submission that the subject matter of the instant case is purely an internal affair of the Lions organization and, therefore, is beyond judicial review. On the other hand, private respondent maintains that court intervention is warranted when, as he alleges in this case, there is fraud, oppression. bad faith, when the proceedings in question are violative of the laws of the association, or where the proceedings are illegal. We find for the petitioners and in finding so, We adopt the general rule that "... the courts will not interfere with the internal affairs of an unincorporated association so as to settle disputes between the members, or questions of policy, discipline, or internal government, so long as the government of the society is fairly and honestly administered in conformity with its laws and the law of the land, and no property or civil rights are invaded. Under such circumstances, the decision of the governing body or established private tribunal of the association is binding and conclusive and not subject to review or collateral attack in the courts. " (7 C.J.S. pp. 38- 39).

The general rule of non-interference in the internal affairs of associations is, however, subject to exceptions, but the power of review is extremely limited. Accordingly, the courts have and will exercise power to interfere in the internal affairs of an association where law and justice so require, and the proceedings of the association are subject to judicial review where there is fraud, oppression, or bad faith, or where the action complained of is capricious, arbitrary, or unjustly discriminatory. Also, the courts will usually entertain jurisdiction to grant relief in case property or civil rights are invaded, although it has also been held that the involvement of property rights does not necessarily authorize judicial intervention, in the absence of arbitrariness, fraud or collusion. Moreover, the courts will intervene where the proceedings in question are violative of the laws of the society, or the law of the land, as by depriving a person of due process of law. Similarly, judicial intervention is warranted where there is a lack of jurisdiction on the part of the tribunal conducting the proceedings, where the organization exceeds its powers, or where the proceedings are otherwise illegal. (7 C.J.S., pp. 39-41). In accordance with the general rules as to judicial interference cited above, the decision of an unincorporated association on the question of an election to office is a matter peculiarly and exclusively to be determined by the association, and, in the absence of fraud, is final and binding on the courts. (7 C.J.S., p. 44). The instant controversy between petitioner So and respondent Josefa falls squarely within the ambit of the rule of judicial nonintervention or non- interference. The elections in dispute, the manner by which it was conducted and the results thereof, is strictly the internal affair that concerns only the Lions association and/or its members, and We find from the records that the same was resolved within the organization of Lions Clubs International in accordance with the Constitution and By-Laws which are not immoral, unreasonable, contrary to public policy, or in contravention of the laws of the land. It is of judicial notice that a Lions club is a voluntary association of civic-minded men whose general purpose and aim is to serve the people and the community. It appears from the records that duly organized and chartered Lions clubs all over the world are under the supervision of the mother club known as The International Association of Lions Clubs for Lions Clubs International) which holds international offices in Illinois, U.S.A., and is governed by its constitution and by-laws. The objects of this worldwide organization are: (a) To create and foster a spirit of understanding among the peoples of the world. (b) To promote the principles government and good citizenship. of good

endeavors. (Constitution of the International Association of Lions Clubs, Article II, Section 2.) Member clubs are chartered in accordance with the provisions of its constitution which provide that: Section 4. ... A Lions club shall be considered chartered when its charter has been officially issued. The acceptance of a charter by a Lions Club shall be a ratification of, and agreement on its part to be bound by, the Constitution and ByLaws of this Association and a submission by said Lions Club to have its relationship with this Association interpreted and governed by this Constitution and By-Laws according to the laws in effect, from time to time, in the State of Incorporation of The International Association of Lions Clubs. Section 5. Except as otherwise provided herein, the International Board of Directors shall have full power and authority to sanction the organization and chartering of all clubs, under such rules and regulations as it may prescribe. Subject to the provisions of this Constitution and By-Laws, all club so organized shall be under the exclusive jurisdiction of said Board of Directors." Aside from the obligation to carry on activities for the advancement of the civic, cultural, social or moral welfare of the community and for the promotion of international understanding, a chartered Lions club shall "(j) abide by the policies and requirements as determined, from time to time, by the International Board of Directors." (Constitution, Art. XI, Sec. 1). The International Board of Directors is composed of the President, Immediate Past President, First and Second and Third Vice Presidents and 28 Directors. (Art. V, Sec. 1, Constitution). In the matter of the election for the office of District Governor, the Constitution of Lions International provides: Section 8 (a) Subject to the provisions of Sec. 2 of this Article VII: (1) ... An election for the office of District Governor shall be conducted in accordance with the provisions of the respective District (Single, Sub or Multiple) Constitution and By-Laws. The results of each District Governor election shall be reported to the International Office by the respective current District Governor and/or the Association's Extension Representative. The results so reported shall be presented to the International Board of Directors. All District Governor election results shall be adopted by the International Board of Directors and thereby become effective, except in the case of an election protest filed or legal action resulting therefrom in which event the appointment or election of such District Governor shall be subject to action by the International Board of Directors, (Emphasis supplied) The records disclose that the election dispute between petitioner James L. So and respondent Vicente Josefa was brought before and elevated to the International Board of Directors through the Constitution and By-Laws Committee of Lions Clubs International,

(c) To take an active interest in the civil, cultural, social and moral welfare of the community. (d) To unite the clubs in the bonds of friendship, good fellowship and mutual understanding. (e) To provide a forum for the open discussion of all matters of public interest provided, however, that partisan politics and secretarian religon shall not be debated by club members. (f) To encourage service-minded men to serve their community without personal financial reward, and to encourage efficiency and -promote high ethical standards in commerce, industry, professions, public works and private

300 22nd Street, Oakbrook, Illinois 60570, U.S.A. (See Letter Protest of petitioner So marked Annex "20", pp. 187-190, Records and Answer of Gov. Huang marked Annex "21 ", pp. 191-196, Records). In his formal protest dated June 11, 1982, petitioner So assailed the validity of the "alleged election and proclamation" of Lion Vicente Josefa as District Governor of District 301-Al for the Lions fiscal year 1982-1983 and called attention to the "blatant display of oppressive conduct of Gov. James T. Huang of District 301-Al before, during, and after the just concluded convention in the hope that the mistakes and miscarriage of justice be rectified." Narrating the sequence of events, petitioner claimed that Gov. Huang failed to constitute and present within the prescribed periods, the District Nominations and Elections Committee in violation of the Multiple District 301 Constitution and By-Laws; that duly registered delegates were deliberately disenfranchised; that Gov. Huang arbitrarily transferred the venue of election from the Little Theater, Olongapo City National High School, to the Admiral Hotel which was the headquarters of his opponent, Vicente Josefa, without the sanction and authority of the State Council of Governors and the Convention. Petitioner So pointed out that he was duly nominated by the District Nominations Committee as well as respondent Vicente Josefa and in the elections duly conducted by the Election Committee at the official venue at the Little Theater, he received 147 votes as against 3 votes in favor of Josefa and that the 147 votes he received is a clear majority of the total number of registered delegates of District 301-Al which was 251, or a clear majority of 59%. The election results were duly certified by the Convention Chairman and by the official representative of the State Council of Governors, District Gov. Ramon Beleno of District 301-E. Petitioner, therefore, prayed that he be recognized as the duly elected District Governor of District 301-Al for the Lion fiscal year 1982-1983. Answering the letter-protest of petitioner So and as directed by Lions Clubs International, Gov. Huang in his letter dated June 17, 1982 denied the assertions of the protestant, petitioner So, and maintained that he had faithfully performed all the duties and responsibilities of his office in accordance With the Constitution and By-Laws, of the Multiple District, citing incidents wherein followers of petitioner So allegedly created trouble by booing, shouting and uttering invectives and armed men intimidated followers of Josefa from entering the Little Theater. In changing the venue of elections, Huang said he wanted "a democratic and peaceful election which could not be achieved in the old site because of the unruly and deteriorated atmosphere caused by the agitations from the camp of James L. So." Gov. Huang, moreover, contended that the election in the Little Theater was never legally convened as there were no ballots, no accreditation papers, no ballot boxes and other important papers relative to an honest election. And since the election of Josefa was proclaimed by the State Council of Governors, Gov. Huang prayed that the election of Governor-elect Vicente Josefa be sustained and affirmed. Filed and attached to the Answer of Gov. Huang is the Report of the Governor to Lions Clubs International including reports of the Election Committee, the Board of Canvassers, Minutes of the Election Proceedings, Certification of the Proclamation of Governor-elect Josefa and Resolution of the State Council of Governors confirming the proclamation. (See Annex "22", pp.197-203). Thereafter, the Constitution and by-Laws Committee, through Joseph D. Stone, General Counsel of the International Association of Lions Clubs, submitted to the International Board of Directors the following Report: The International Board of Directors has received a complaint filed by Lion James L. So. This complaint has been filed in accordance with the Constitutional Complaints Procedure of the International Board of Directors. All parties have been given the opportunity to respond and

have filed their official response with the International Association. Your Committee has examined the evidence submitted by the parties and has conducted a hearing attended by Lion So, District Governor of District 301-A Lion James Huang Lion Vicente Josefa and Multiple District 301 Council Chairman Lion Antonio Ramos. Your Committee hereby makes the following finding of facts and recommendations respecting the election for the office of District Governor in District 301-Al for the fiscal year 1982-83: 1. That there were two properly nominated candidates for the office of District Governor, District 301-Al, for the fiscal year 1982-83: Lion James L. So and Lion Vicente Josefa. 2. That one hour after the designated convening time, District Governor Huang transferred the election meeting from the designated site to the Admiral Royal Hotel. 3. That after the announcement of District Governor Huang transferring the election meeting, a majority of the delegates of the newly authorized District 301-Al remained at the designated site and convened an election for District Governor between the two candidates, Lion So and Lion Josefa. 4. That there were two elections held on June 6, 1982 for the office of District Governor of District 301-Al. 5. That one election was held as a part of the official District Convention at the designated election meeting site, the Little Theater Olongapo National High School, at which Lion So received 147 votes and Lion Josefa received 3 votes. 6. That the other election was held at the Admiral Royale Hotel at which Lion Josefa received 115 votes. 7. That the action of District Governor Huang in transferring the election meeting away from the convention site was without approval of a majority of the delegates and was without any clear authority and justification. 8. That the said election meeting held at the Little Theatre Olongapo National High School was properly conducted and resulted in the election of Lion So. 9. That said election of Lion So was duly certified by the official Election Committee Chairman Lion Ernesto Castaeda, appointed by District Governor Huang and District Governor Beleno of District 301-E, the official Multiple District Council representative.

Based upon the above finding of facts your Committee is of the opinion that Lion James L. So was duly elected as District Governor, District 301- Al for the fiscal year 1982-83 and that said election should be recognized by the International Board of Directors. Your Committee is also of the opinion that the election conducted by District Governor Huang, 301-A, at the Admiral Royale Hotel was unauthorized and improper and is thereby null and void. Your Committee recommends that the Board concur in said finding of facts and recommendations by the adoption of RESOLUTION III-A hereinafter." (Annexes "O" and "O-1", Reply, pp. 237-238, Records). At the meeting of the International Board of Directors held on June 27, 1982, the election of petitioner James L. So to serve as District Governor of District 301-Al for the fiscal year 1982-83 was approved and said petitioner was duly informed thereof by Richard G. Rice, Manager, District Operations Department, Lions Clubs International in his letter dated July 8, 1982 and marked Annex "K" to the petition, p. 79, Records. Petitioner attended and completed the District Governors' Executive Seminar as District Governor of 301-Al (see Annex "L", P. 80, Records). On June 29, 1982, petitioner So was proclaimed, sworn to and installed to office as District Governor of District 301-Al by the President of Lions International at the close of the 65th Lions Clubs International Convention held in Atlanta, Georgia, U.S.A. The Report of the Constitution and By-laws Committee duly approved and adopted by the International Board of Directors clearly belies the claim of injustice alleged by respondent Josefa in his complaint in Civil Case No. 82-10588 that petitioner So was illegally and arbitrarily nominated; that the latter's election was illegal and that he (Josefa) was legally elected in a valid election held at the new venue and was duly proclaimed by the State Council of Governors and that Lions International unlawfully recognized So as the winner on the basis of his illegal election. These findings upon the evidence submitted and examined at the hearing of the election protest before the Committee personally attended by both petitioner So and respondent Josefa may not be disturbed by the courts. The decision of the Association's tribunal, the International Board of Directors, is controlling since respondent Josefa alleges no invasion of this property or civil rights and neither is it claimed that the government of the Association is not fairly and honestly administered in conformity with its laws and the law of the land. It is clear that under the Constitution of Lions International, Art. IV, Section, 8, the District Governor serves without compensation. Lionism prides itself in that its motto is: "We serve", and "Liberty, Intelligence, Our Nation's Safety" its slogan or credo. (Secs. 2 and 3, Art. 1, Constitution). There is, therefore, no proprietary or pecuniary interest involved in the membership of the Lions and in the offices they seek and hold in the club and district levels. Being merely a member or officer of the Lions Clubs or District is only a privilege and an opportunity for service to the community that is not enforceable at law. And since the disputed election to the position of District Governor is within the peculiar province and function of Lions International through its established tribunal to decide and determine in accordance with its governing laws, its resolution may not be questioned elsewhere, much less in the courts. Thus, in Our jurisprudence in U.S. vs. Caete 38 Phil. 253, the Supreme Court held that in matters purely ecclesiastical, the decision of the proper church tribunals are conclusive upon the civil tribunals and that a church member who is expelled from membership by the church authorities or a priest or minister who is by then deprived of his sacred office, is without remedy in the civil court, which will not inquire into the correctness of the decision of the ecclesiastical tribunals. So also in Felipe vs. Leuterio, et al, 91 Phil. 482, We held that the judiciary has no power to reverse the award of the Board of Judges of an oratorical contest and for that

matter, it would not interfere in literary contests, beauty contests, and similar competitions. In essence, the courts, considering the nature of the action or suit at bar, are without jurisdiction and authority to review and reverse the decision of the International Board of Directors, Lions Clubs International, approving and recognizing the petitioner as duly elected District Governor of District 301-A1 for the fiscal year 19821983. WHEREFORE, IN VIEW OF THE FOREGOING, Civil Case No. 8210588 entitled "Vicente Josefa vs. Lions Clubs International, Antonio Ramos and Lion James L. So", Court of First Instance of Manila, Branch XXIV (now Regional Trial Court, National Capital Region) and the petition entitled "Vicente Josefa vs. Hon. Judge Augusto M. Amores, Lions Clubs International and James L. So", CA-G.R. No. 14599-SP (now Intermediate Appellate Court) are hereby DISMISSED. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 135691 September 27, 1999 EMMANUEL SINACA, petitioner, vs. MIGUEL MULA and COMMISSION ON ELECTIONS, respondents.

DAVIDE, JR., C.J.: Before us is a special civil action for certiorari, mandamus and prohibition, with a prayer for preliminary injunction and/or temporary restraining order assailing the Resolution of 6 October 1998, of respondent Commission on Elections (hereafter COMELEC) in SPA No. 98-292, declaring as invalid the substitution of mayoralty candidate Teodoro F. Sinaca, Jr. by herein petitioner Emmanuel D. Sinaca. 1 The records disclose that in the 11 May 1998 elections, the two opposing factions of the ruling party LAKAS-NUCD-UMPD (hereafter LAKAS) filled in separate candidates for the position of mayor of the Municipality of Malimano, Surigao del Norte. One faction headed by Robert Z. Barbers (hereafter "BARBERS Wing") nominated Grachil G. Canoy (hereafter CANOY), while the other group lead by Francisco T. MATUGAS (hereafter "MATUGAS Wing") endorsed the candidacy of Teodoro F. Sinaca, Jr. (hereafter TEODORO). Miguel H. Mula (hereafter MULA), a candidate for vice-mayor and belonging to the "BARBERS Wing," filed before the COMELEC a petition for disqualification against TEODORO which was docketed as SPA 98-021. On 8 May 1998, the Second Division of the COMELEC issued a resolution disqualifying TEODORO as candidate for mayor of the Municipality of Malimono, Surigao del Norte and ordering the cancellation of his certificate of candidacy because of prior conviction of bigamy, a crime involving moral turpitude. 2 On 10 May 1998, TEODORO filed a motion for reconsideration of the aforesaid resolution. On even date, herein petitioner Emmanuel D. Sinaca, (hereafter EMMANUEL), an independent candidate,

withdrew his certificate of candidacy for Sangguniang Bayan Member, joined and became a member of the LAKAS party and was nominated by the LAKAS "MATUGAS Wing" as the substitute mayoralty candidate for the Municipality of Malimono, Surigao del Norte. On the basis of said nomination, EMMANUEL filed his certificate of candidacy 3 attached thereto is his certificate of nomination as LAKAS mayoralty candidate signed by Governor Francisco T. MATUGAS (hereafter MATUGAS), as party provincial chairman together with EMMANUEL's written acceptance of the party's nomination. 4 On 11 May 1998, MULA filed through mail another petition for disqualification, this time against EMMANUEL, which was received by the COMELEC on 14 May 1998 and was docketed as SPA No. 98-292. In his petition MULA contended that the nomination of EMMANUEL as substitute candidate is illegal on the following grounds: a) The substitute, before he filed his Certificate of Candidacy as LAKAS candidate, was an independent candidate. Being so, he cannot rightfully substitute the disqualified one; b) The nomination of respondent substitute bears only the approval of Provincial Chairman Matugas and without consultation and consent of the higher political hierarchy especially Mr. Robert Ace Barbers who has also a say on nomination of candidates within his jurisdiction, as evidenced by an authority hereto attached as Annex "E"; c) Substitution generally takes place when by reason of a candidate's disqualification the party to which he belongs loses such representation. In the instant case, the disqualification did not at all prejudice LAKAS NUCD-UMDP because Mr. Garchil G. Canoy is still there representing the party after the disqualification. The substitution is a redundancy and not necessary under the circumstances, more so that it was done with malice and without the required consensus of the political hierarchy. 5 In his answer, EMMANUEL moved for the dismissal of the petition for the following reasons: a) The petition does not state a cause of action as it is not based on any of the grounds for disqualification as provided under Sec. 68 of the Omnibus Election Code and Sec. 40(A) of the Local Government Code of 1991; b) The issue of who in LAKAS has the authority to nominate candidates for local officials, is an intra-party matter hence beyond the jurisdiction of the Comelec; c) Gov. Matugas was duly authorized by LAKAS as its Provincial Chairman and official candidate for Provincial Governor to nominate the party's local candidates; and d) The petition is already moot and academic because of the proclamation of EMMANUEL as mayor of the Municipality of Malimono, Surigao del Norte. 6

On 28 May 1998, the COMELEC Second Division dismissed the petition for disqualification and upheld the candidacy for mayor of EMMANUEL. 7 The pertinent part of the resolution reads: It is therefore clear, that candidate for governor Matugas was clothed with the authority to nominate the respondent as substitute candidate for the position of mayor of Malimono, Surigao del Norte, vice the disqualified candidate, Apropos thereto, Section 77 of the Omnibus Election Code states: xxx xxx xxx Considering that on May 10, 1998 the proper nomination was issued by the official of the party authorized therefor, it stands to reason that the substitution was valid, respondent having accepted the nomination and his certificate of candidacy dated May 10, 1998, correspondingly filed. Respondent is correct in stating that the question of nomination is a party concern which is beyond the ambit of the Commission. What matters is, the candidate has been certified as a party member and the nomination duly issued in his favor.1wphi1.nt Be that as it may, the petition is rendered moot and academic by the proclamation of respondent on May 12, 1998, as evidenced by the certificate of canvass and proclamation of winning candidates for municipal offices with SN 16671298 and his oath of office dated May 13, 1998, which forms part of the record of this case. WHEREFORE, premises considered, the Commission (Second Division) RESOLVES to DISMISS the instant petition for lack of merit. MULA filed a motion for reconsideration raising in the main that the signature alone of MATUGAS in the nomination was not sufficient because the party's authority to nominate was given to both MATUGAS and Senator Robert S. Barbers (hereafter BARBERS), in their joint capacity, and that the nomination of EMMANUEL is void since he was an independent candidate prior to his nomination. 8 On 6 October 1998, the COMELEC en banc issued a Resolution 9 which set aside the resolution dated 28 May 1998 of the Second Division and disqualified EMMANUEL, for the following reasons: In the motion for reconsideration, petitioner argues that the signature only of Governor Matugas in the nomination was not sufficient because the party's authority to nominate was given to both Governor Matugas and Senator Robert Barbers, in their joint capacity. We do not have to resolve this issue because the more important issue is whether respondent is disqualified as a substitute candidate. He was an independent candidate for councilor at the time he filed his certificate of candidacy for mayor as a substitute of a disqualified candidate. Thus, he did not belong to the same political party as the substituted candidate.

We sustain petitioner's position. We declare that the substitution of disqualified mayoralty candidate Teodoro F. Sinaca, Jr. by respondent Emmanuel D. Sinaca was not valid because the latter was an independent candidate for councilor prior to his nomination as substitute candidate in place of the withdrawing candidate who was a Lakas party member. IN VIEW WHEREOF, the Commission en banc hereby resolves to SET ASIDE the Commission (Second Division)'s resolution dated May 28, 1998. We declare Emmanuel D. Sinaca DISQUALIFIED to be a substitute candidate for mayor of Malimono, Surigao del Norte, and ANNUL his proclamation as such being void ab initio. Upon finality of this resolution, he is ordered to vacate the position of mayor of the municipality of Malimono, Surigao del Norte, to which the vice-mayor elected in the May 11, 1998 elections shall succeed by operation of law. Not satisfied therewith, EMMANUEL is now before us alleging that the COMELEC committed grave abuse of discretion in issuing the assailed Resolution. EMMANUEL principally contends that his nomination as a substitute candidate was regular and valid hence, his proclamation as mayor of the Municipality of Malimono, Surigao del Norte must be upheld. In the assailed resolution, the COMELEC disqualified EMMANUEL solely on the basis that he was an independent candidate prior to his nomination as a substitute candidate. The rule on substitution of an official candidate of a registered or accredited political party who dies, withdraws or is disqualified for any cause after the last day for the filing of certificates of candidacy is governed by Sec. 77 of the Omnibus Election Code which provides: If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate maybe filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Thus, under the said provision it is necessary, among others, that the substitute candidate must be of the same political party as the original candidate and must be duly nominated as such by the political party. In the instant case, there was substantial compliance with the above said requirements. EMMANUEL was properly nominated as substitute candidate by the LAKAS party "MATUGAS wing" to which TEODORO, the disqualified candidate, belongs, as evidenced by the Certificate of Nomination and Acceptance signed by MATUGAS,

the Party's provincial chairman. 10 That EMMANUEL is a bona fide member of the LAKAS party is shown not only by the certificate of membership, 11 which is being controverted for having been presented as new evidence for the first time before this court, but more importantly by his certificate of candidacy filed before the COMELEC stating therein that he belongs to the LAKAS party. 12 A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. 13 It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. 14 The certificate of candidacy of EMMANUEL permitted the placing of his name before the electorate. It constituted an authorized badge, which the voter could scrutinize before casting his ballot. Thus, with the declaration of EMMANUEL in his certificate of candidacy that he is affiliated with the LAKAS party, he was effectively voted by the electorate not as an independent candidate, but as a member of the LAKAS party. His allegation in the certificate of candidacy as to political party to which he belongs is sufficient to make the electorate conscious of the platform of the said political party. 15 The fact that EMMANUEL was an independent candidate prior to his nomination is immaterial. What is more significant is that he had previously withdrawn his certificate of candidacy as independent candidate for Sangguniang member before he filed his certificate of candidacy as a substitute for TEODORO at which time he was, for all intents and purposes, already deemed a member of the LAKAS party "MATUGAS wing." As such, EMMANUEL is obliged to pursue and carry out the party's ideology, political ideas and platforms of government. As the official candidate of an organized political party, he is bound by the party's rule. He owes loyalty to the party, its tenet and its policies, its platforms and programs of government. To the electorate he represents the party, its principles, ideals and objectives. 16 Even the fact that EMMANUEL only became a member of the LAKAS party after the disqualification of TEODORO, will not affect the validity of the substitution. There is nothing in the Constitution or the statute which requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. Section 77 of the Omnibus Election Code only mandates that a substitute candidate should be a person belonging to and certified by the same political party as the candidate to be replaced. We cannot provide for an additional requirement or condition not provided under the said provision without encroaching into the domain of the legislative department. As aptly observed by Commissioner Teresita Dy-Liacco Flores in her dissenting opinion, to wit: . . . . With due respect to the majority opinion, I find that at the time the substitute candidate filed his certificate of candidacy for mayor and at the time of his election as such, he was an independent candidate no more. He was, at that time, a nominee of the LAKAS NUCD-UMDP Political Party. This fact is evidenced by the Certificate of Nomination and Acceptance dated 10 May 1998 executed by the Provincial Chairman of the said party of Surigao del Norte and by herein respondent. This certificate bonafide member of the said party. To rule that respondent was still an independent candidate and not a member of the LAKAS NUCD-UMDP political party at the time of filing his certificate of candidacy as a substitute candidate for mayor is to arrogate upon this Commission

what would have been the sole and exclusive prerogative of any political organization to determine party membership and its nominees to elective positions. It is an accepted fact that, in this country, politicians switch party affiliations more frequently than the ebb and flow of the tides. 17 The argument advanced by private respondent MULA that MATUGAS has no authority to nominate a candidate without the concurrence of BARBERS is devoid or merit. Firstly, MATUGAS, was designated by the LAKAS National Headquarters through its Deputy Secretary General and National Secretariat Executive Director Reynaldo L. Maclang, as the party officer authorized to nominate, sign, attest under oath, and issue Certificates of Nomination and Acceptance for the Party's official candidates for the positions of Board Members, City Councilors, Municipal Mayors, Vice-mayors and councilors for the Province of Surigao del Norte. 18 This authorization which was dated March 26, 1998 replaced and/or modified the former authorization given by the party of both BARBERS and MATUGAS. 19 Both BARBERS and MATUGAS were given separate and distinct authorizations when the mother of BARBERS ran for governor against MATUGAS. Secondly, there are only two official candidates for mayor of Malimono, Surigao del Norte, namely TEODORO and CANOY, 20 both of whom are members of the LAKAS party but from different factions. TEODORO was indorsed by the "MATUGAS wing" and CANOY by the "BARBERS Wing." The certificates of candidacy of these candidates were never questioned despite the fact that they belong to the same political party and were separately and independently endorsed by either BARBERS or MATUGAS. Therefore, if the absence of a joint nomination is to be considered fatal to the validity of the certificate of candidacy of TEODORO or CANOY, then there would in effect no candidates running for mayor in the Municipality of Malimono, Surigao del Norte. Verily, it stands to reason that with the disqualification of TEODORO, who is a member of the LAKAS "MATUGAS wing," the substitute must come from the same faction as the candidate to be substituted and since it was MATUGAS who indorsed the nomination of TEODORO, then MATUGAS' nomination of EMMANUEL in substitution of TEODORO is sufficient and in order. There is also no irregularity in the act of EMMANUEL in joining a political party. The right of individuals to form an association as guaranteed by the fundamental law includes the freedom to associate or refrain from association. 21 No man is compelled by law to become a member of a political party; or after having become such, to remain a member. He may join such a party for whatever reason reasons seems good to him, and may quit the party for any cause, good, bad, or indifferent, or without cause. 22 The decision of a candidate on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to his discretion. 23 We also agree with the contention of EMMANUEL that the decision as to which member a party shall nominate as its candidate is a party concern which is not cognizable by the courts. A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the party's ideologies and preference. 24 Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. 25 Thus, the rule is that the determination of

disputes as to party nominations rests with the party, in the absence of statutes giving the court's jurisdiction. 26 Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. 27 Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle party affairs, including nominations, in such manner as party rules may establish. 28 An election in which the voters have fully, fairly, and honestly expressed their will is not invalid even though an improper method is followed in the nomination of candidates. 29 This is because in determining the effect of a particular irregularity in a party nomination for office on the result of the general election, the pivotal issue is whether the irregularity complained of has prevented a full, fair, and free expression of the public will. Thus, in the absence of a statutory provision to the contrary, an election may not even be invalidated by the fact that the nomination of the successful candidate was brought about by fraud, and not in the manner prescribed by the statute, provided it appears that noncompliance with the law did not prevent a fair and free vote. 30 None of the situations adverted to above are obtaining in the case at bar as to warrant this Court's intervention in ascertaining the propriety of EMMANUEL's nomination as a substitute candidate by the LAKAS "MATUGAS wing." Finally, the issue as to the validity of EMMANUEL's nomination as substitute candidate has been rendered moot and academic by his proclamation on May 12, 1998, by the Board of Canvassers of Malimono as the duly elected municipal mayor and after he has assumed into office. The fact that the nomination of a substitute lacks the signature of one of the authorized signatory is but a technicality which cannot be used to frustrate the will of the electorate. It has been held that the provisions of the election law regarding certificates of candidacy, such as signing and swearing on the same, as well as the information required to be stated therein, are considered mandatory prior to the elections. Thereafter, they are regarded as merely directory. With respect to election laws, it is an established rule of interpretation that mandatory provisions requiring certain steps before election will be construed as directory after the elections, to give effect to the will of the electorate. Thus, even if the certificate of candidacy was not duly signed or if it does not contain the required data, the proclamation of the candidate as winner may not be nullified on such ground. The defects in the certificate should have been questioned before the election; they may not be questioned after the election without invalidating the will of the electorate, which should not be done. 30 In Guzman v. Board of Canvassers, 32 the Court held that the "will of the people cannot be frustrated by a technicality that the certificate of candidacy had not been properly sworn to. This legal provision is mandatory and noncompliance therewith before the election would be fatal to the status of the candidate before the electorate, but after the people have expressed their will, the result of the election cannot be defeated by the fact that the candidate has not sworn to his certificate of candidacy." Thus, were a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people. 33 Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred. 34

WHEREFORE, the petition is GRANTED. The assailed resolution of 6 October 1998 of the COMELEC en banc is hereby REVERSED and SET ASIDE and another one rendered declaring EMMANUEL SINACA as having been duly elected mayor of the Municipality of Malimono, Surigao del Norte.1wphi1.nt SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-30001 June 23, 1970 THE DIRECTOR OF PRISONS and THE EXECUTIVE SECRETARY, petitioners, vs. ANG CHO KIO @ ANG MING HUY and THE COURT OF APPEALS, respondents. Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioners. Norberto J. Quisumbing for respondents.

his sentence and upon the expiration thereof, he shall be deported from the Philippines for being an undesirable alien. Ang Cho Kio duly accepted the conditions of his pardon and actually left the Philippines for Taipeh, Nationalist China, on July 28, 1959. In the evening of June 26, 1966 Ang Cho Kio arrived at the Manila International Airport on a Philippine Air Lines plane from Taipeh, travelling under the name "Ang Ming Huy." He held a round-trip ticket from Taipeh to Honolulu, to San Francisco, to Los Angeles, to Chicago, to Washington D.C. to New York, to Vancouver, to Tokyo, to Seoul, to Osaka, to Taipeh to Bangkok, to Saigon, to Hongkong and back to Taipeh. He was booked on Philippine Air Lines earliest connecting flight to Honolulu on June 29, 1966 at 6:30 p.m., or with a stop-over of about 72 hours in Manila. He surrendered his passport to the immigration authorities at the Manila International Airport, and was issued a note that his departure was scheduled for June 29, 1966 at 6:30 p.m. He left his luggage at the airport and was issued claim tags. He registered for a three-day stay at the El Presidente Hotel at Paraaque, Rizal. He contacted his two friends in Manila, Lim Pin and Go Bon Kim. These two friends invited him to stay longer in the Philippines. On June 28, 1966 he and his two friends went to the Bureau of Immigration, where his friend Lim Pin signed a letter addressed to the Commissioner of Immigration requesting for a fourteen-day extension of stay in the Philippines for him. Ang Cho Kio was identified by inspector Mariano Cristi of the Immigration Bureau as the Ang Cho Kio who was deported to Taipeh on July 18, 1959. His identity having been established, Ang Cho Kio was arrested, and the immigration authorities conducted an investigation regarding his presence in the Philippines. The immigration authorities did not allow him to proceed with his trip to Honolulu. On July 5, 1966 the Executive Secretary, by authority of the President, ordered him recommitted to prison to serve the unexpired portion of the sentence that were imposed on him, for having violated the conditioned of his pardon. The supplemental order of recommitment reads as follows: TO THE DIRECTOR MUNTINLUPA, RIZAL OF PRISONS

ZALDIVAR, J.: An appeal by certiorari, by the Solicitor General in behalf of the Director of Prisons and the Appeals in CA-G.R. No. 39018-R of said Court, entitled "Ang Cho Kio (Ang Ming Huy) Petitioner-Appellee versus The Director of Prisons and the Executive Secretary, Respondents-Appellees." 1 In his petition the Solicitor General prays this Court "to render judgment ordering the striking out from said decision of the portions recommending to the Executive Secretary 'to allow the (petitioner) (respondent Ang Cho Kio @ Ang Ming Huy) to leave this country in the first available transportation abroad' but otherwise affirming the dismissal of the petition for habeas corpus, with costs in all instances against respondent Ang Cho Kio @ Ang Ming Huy." The pertinent facts for the purposes of this decision, as shown in the record, are as follows: Respondent Ang Cho Kio @ Ang Ming Huy had been charged, tried and convicted of various offenses committed in the Philippines and was sentenced to suffer penalties, to wit: a total of forty-five (45) years, ten (10) months and twenty one (21) days of imprisonment, P6,000 indemnity, and P5,000 moral damages, plus life imprisonment and P6,000 indemnity. 2 After serving six and one-half (6-) years of his sentence said respondent was granted conditional pardon on July 4, 1959 by the President of the Philippines. The conditional pardon partly reads as follows: By virtue of the authority conferred upon me by the Constitution, and upon the recommendation of the Board of Pardons and Parole, the unexecuted portions of the prison terms of prisoner ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KE WA @ LUCIO LEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG is hereby remitted on condition that he will voluntarily leave the Philippines upon his release and never to return to this country. Should the above-named prisoner refuse to accept said condition, be shall continue serving

WHEREAS, ANG CHO KIO @ KIWA & PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG was granted conditional pardon by the President of the Philippines on July 4, 1959, upon the condition that he will voluntarily leave the Philippines upon his release and never to return to this country; and WHEREAS, said ANG CHO KIO has violated the condition of his pardon in that on June 26, 1966, he returned to this country from Taipei and gained entry under an assumed name, ANG MING HUY, failed to leave on the first available connecting flight to Honolulu, his alleged destination; instead requested a fourteen day extension of his 72-hour transient stop-over; and had in December 1965 applied for a temporary visitor's visa to Manila also under his assumed name, ANG MING HUY; NOW, THEREFORE, by virtue of the authority conferred upon the President of the Philippines by Section 64(i) of the Revised Administrative Code, you are hereby ordered to recommit to prison said ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG @ ANG MING HUY to serve the unexpired portion of the sentences for which he

was originally committed to prison, and upon expiration thereof, to deliver said person to the custody of the Commissioner of Immigration for immediate deportation for being an undesirable alien. Manila, July 5, 1966. By Authority of the President: (Sgd.) RAFAEL M. SALAS Executive Secretary RS/ara. Ang Cho Kio filed with the Executive Secretary a motion, dated August 29, 1966, for the reconsideration of the supplemental order of recommitment. The Executive Secretary failed to act on the motion for reconsideration, and so on October 5, 1966 Ang Cho Kio filed a petition for a writ of habeas corpus with the Court of First Instance of Rizal (Pasay Branch), making as respondents in said petition the Director of Prisons and the Executive secretary. Under date of October 10, 1966, the officer-in-charge of the Bureau of Prisons filed his return. Under date of October 17, 1966, the Solicitor General filed a return for the Director of Prisons and the Executive Secretary. After due hearing the Court of First Instance of Rizal, on January 31, 1967, rendered a decision dismissing the petition for habeas corpus. The Court of First Instance of Rizal held that Ang Cho Kio @ Ang Ming Huy was validly recommitted to prison by the President of the Philippines in the exercise of his prerogatives pursuant to the provisions of Section 64(i) of the Revised Administrative Code. Ang Cho Kio appealed to the Court of Appeals from the decision of the Court of First Instance of Rizal. In the decision of a special division of five justices, with three justices concurring, and two justices concurring and dissenting, the Court of Appeals rendered a decision which in effect affirmed the decision of the Court of First Instance of Rizal dismissing Ang Cho Kio's petition for habeas corpus. We read the following in the majority opinion: It having been settled that Section 64(i) of the Revised Administrative Code is still in force, and that the respondent Executive Secretary, in the name and by authority of the President, exercised the power of recommitment herein under the provisions of said Code, and not under Art. 159 of the Revised Penal Code, it becomes apparent that any discussion regarding failure to file the corresponding indictment and the presence or absence of criminal intent, will be off-tangent. On the contrary, the issue, in this connection, is whether the courts of justice may interfere in the exercise by the President, thru his Executive Secretary, of his administrative power of recommitment. Again, it is settled jurisprudence that the Chief Executive may determine, alone and by himself, whether the condition attached to a pardon given by him has been violated; and in the exercise of this prerogative, the courts may not interfere, however erroneous the findings may be (Espuelas v. The Provincial Warden, supra; Tesoro v. Director of Prisons, 68 Phil. 154). The aforequoted portion of the majority opinion affirms the reasons of the Court of First Instance of Rizal in dismissing the petition for habeas corpus. However, the majority opinion contains the recommendation that Ang Cho Kio

... be sent out at once from this country and that he be allowed to leave Muntinlupa Prisons under guard only when he has been booked for outward flight at the Manila International Airport so as to avoid the possibility of any further violation of his conditional pardon. At any rate it would be to the best interest of the security and peace of this country to have the petitioner expatriated from the Philippines, instead of being recommitted for a long duration of time to prison where his presence may constitute a constant menace to our country's welfare and bring about some sinister influence among the people with whom he will associate or come in contact. Then the dispositive portion of the majority opinion reads as follows: FOR ALL OF THE FOREGOING REASONS, the petition herein filed is hereby dismissed, with costs against the petitioner, and with a reiteration of the recommendation to allow the petitioner to leave this country in the first available transportation abroad made in the course of this decision. Let a copy of this decision be furnished the Executive Secretary. The concurring and dissenting opinion of the two justices opens with the following statement: We concur with the majority opinion insofar as the dismissal of the petition for writ of habeas corpus of petitioner-appellant Ang Cho Kio is concerned, for such dismissal, in effect, is equivalent to an affirmance of the appealed decision. However, we beg to dissent from that portion of the majority opinion recommending that said petitioner-appellant be allowed to leave this country by the first available transportation. In due time the Solicitor General filed with the Court of Appeals a motion for reconsideration, praying for the deletion from the majority opinion of the recommendation to allow Ang Cho Kio to leave the country on the first available transportation abroad. The Court of Appeals, by a vote of three to two in the special division which decided the case, denied the motion. Hence this appeal by certiorari by the Solicitor General to this Court. It is now contended by the Solicitor General that the majority of the special division of five justices of the Court of Appeals erred in making a recommendation to allow respondent Ang Cho Kio to have this country on the first available transportation abroad. The Solicitor General maintains that the recommendation is not a part of the decision binding upon the parties, and is uncalled for; that it gives the decision a political complexion, because courts are not empowered to make such a recommendation, nor is it inherent or incidental in the exercise of judicial powers; that there is no law which gives the court the authority to recommend to the President the voluntary departure of an undesirable alien who is lawfully committed to jail; that the deportation of aliens sentenced by the courts for violation of the laws of the land, and even the act of merely allowing such convicted aliens to voluntarily leave the country, is an act of state exercised solely in the discretion of the Chief Executive. It is urged by the Solicitor General that the act of sending an undesirable alien out of the country is political in character, and the courts should not interfere with, nor attempt to influence, the political acts of the Chief Executive.

In a motion dated April 7, 1969, Ang Cho Kio manifested that he waived his right to file an answer to any brief filed by the Solicitor General. 4 We agree with the Solicitor General. The case before the Court of Appeals was for habeas corpus. The only question to be resolved by the Court of Appeals was whether, or not, the Court of First Instance of Rizal, had rightly dismissed the petition of Ang Cho Kio for habeas corpus. The Court of Appeals was not called upon to review any sentence imposed upon Ang Cho Kio. The sentence against him had long become final, and, in fact, he has served part of the sentence when he was extended pardon on July 4, 1959, upon the condition that he should leave the country, never to return. The opinion of the three justices of the special division of the Court of Appeals, to which the two other justices have concurred, found that the recommitment to prison of Ang Cho Kio was done in the exercise by the President of the Philippines of his power pursuant to the provision of Section 64(i) of the Revised Administrative Code, and the courts should not interfere with the exercise of that power. The majority opinion should have been limited to the affirmance of the decision of the lower court, and no more. The recommendatory power of the courts in this jurisdiction are limited to those expressly provided in the law and such law is the provision of Section 5 of the Revised Penal Code, as follows: Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way the court shall submit to the Chief Executive, through the Department of Justice such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. Certainly, the recommendation in the majority opinion of the special division of the Court of Appeals, now in question, is not authorized under the aforequoted provision of Article 5 of the Revised Penal Code. The Court of Appeals was not called upon to review any sentence that was imposed on Ang Cho Kio. It was simply called upon to determine whether Ang Cho Kio was illegally confined, or not, in the insular penitentiary under the Director of Prisons. We do not consider it proper that the majority of the justices in the special division make a recommendation that would suggest a modification or a correction of the act of the Chief Executive, after the same justices have said in their opinion "that the Chief Executive may determine, alone and by himself, whether the condition attached to a pardon given by him had been violated; and in the exercise of this prerogative, the courts may not interfere, however erroneous the findings may be." When the Chief Executive, exercising his powers pursuant to Section 64(i) of the Revised Administrative Code, ordered Ang Cho Kio recommitted to prison, it is assumed that the Chief Executive had decided that Ang Cho Kio should be dealt with that way under the circumstances. For the court to suggest to the Chief Executive to modify his decision to recommit Ang Cho Kio to prison by allowing him to leave the country instead is indeed to interfere with the functions of the Chief Executive. It would be, as urged by the Solicitor General, an interference on, or an attempt to influence, the exercise by the Chief Executive of the political powers of his office. The matter of whether an alien who violated the laws in this country may remain or be deported is a political question that should be left entirely to the Chief Executive to decide. Under the

principle of separation of powers, it is not within the province of the judiciary to express an opinion, or express a suggestion, that would reflect on the wisdom or propriety of the action of the Chief Executive on matters purely political in nature. It may be said that the recommendation embodied in the majority opinion of the special division of the Court of Appeals simply represents the private opinion of the three justices, and judges should be left free to express even their private opinions in judicial decisions. We believe, however, that the better practice should be that the decision of a court should contain only opinion that is relevant to the question that is before the court for decision. After all, courts are not concerned with the wisdom or morality of laws, but only in the interpretation and application of the law. We believe that judges should refrain from expressing irrelevant opinions in their decisions which may only reflect unfavorably upon their competence and the propriety of their judicial actuations. However, of the ten members of the Court, as presently constituted, only five are of the opinion that the recommendation embodied in the decision of the majority of the special division of the Court of Appeals, now in question, should be deleted from the decision. 5 Two members of the Court are of a different opinion, 6 and three others did not take part in the decision because of their official actuations relative to the case of respondent Ang Cho Kio before it reached this Court. 7 There is, therefore, one vote less than the majority of the Court that is necessary to grant the certiorari prayed for. WHEREFORE, the petition for writ of certiorari is denied, and the decision of the special division of the Court of Appeals stands. No costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-57883 March 12, 1982 GUALBERTO J. DE LA LLANA Presiding Judge, Branch II of the City Court of Olongapo, ESTANISLAO L. CESA, JR., FIDELA Y. VARGAS, BENJAMIN C. ESCOLANGO, JUANITO C. ATIENZA, MANUEL REYES ROSAPAPAN, JR., VIRGILIO E. ACIERTO, and PORFIRIO AGUILLON AGUILA, petitioners, vs. MANUEL ALBA, Minister of Budget, FRANCISCO TANTUICO, Chairman, Commission on Audit, and RICARDO PUNO, Minister of Justice, Respondents.

FERNANDO, C.J.: This Court, pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate cases, has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled "An act reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes." The task of judicial review, aptly characterized as exacting and delicate, is never more so than when a conceded legislative power, that of judicial reorganization, 1 may possibly collide with the time-honored principle of the independence of the judiciary 2 as protected and safeguarded by this constitutional provision: "The Members of the Supreme Court and judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at

least eight Members, order their dismissal." 3 For the assailed legislation mandates that Justices and judges of inferior courts from the Court of Appeals to municipal circuit courts, except the occupants of the Sandiganbayan and the Court of Tax Appeals, unless appointed to the inferior courts established by such Act, would be considered separated from the judiciary. It is the termination of their incumbency that for petitioners justifies a suit of this character, it being alleged that thereby the security of tenure provision of the Constitution has been ignored and disregarded, That is the fundamental issue raised in this proceeding, erroneously entitled Petition for Declaratory Relief and/or for Prohibition 4 considered by this Court as an action for prohibited petition, seeking to enjoin respondent Minister of the Budget, respondent Chairman of the Commission on Audit, and respondent Minister of Justice from taking any action implementing Batas Pambansa Blg. 129. Petitioners 5 sought to bolster their claim by imputing lack of good faith in its enactment and characterizing as an undue delegation of legislative power to the President his authority to fix the compensation and allowances of the Justices and judges thereafter appointed and the determination of the date when the reorganization shall be deemed completed. In the very comprehensive and scholarly Answer of Solicitor General Estelito P. Mendoza, 6 it was pointed out that there is no valid justification for the attack on the constitutionality of this statute, it being a legitimate exercise of the power vested in the Batasang Pambansa to reorganize the judiciary, the allegations of absence of good faith as well as the attack on the independence of the judiciary being unwarranted and devoid of any support in law. A Supplemental Answer was likewise filed on October 8, 1981, followed by a Reply of petitioners on October 13. After the hearing in the morning and afternoon of October 15, in which not only petitioners and respondents were heard through counsel but also the amici curiae, 7 and thereafter submission of the minutes of the proceeding on the debate on Batas Pambansa Blg. 129, this petition was deemed submitted for decision. The importance of the crucial question raised called for intensive and rigorous study of all the legal aspects of the case. After such exhaustive deliberation in several sessions, the exchange of views being supplemented by memoranda from the members of the Court, it is our opinion and so hold that Batas Pambansa Blg. 129 is not unconstitutional. 1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice Laurel's opinion in People v. Vera. 8 Thus: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." 9 The other petitioners as members of the bar and officers of the court cannot be considered as devoid of "any personal and substantial interest" on the matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on Elections: 10 "Then there is the attack on the standing of petitioners, as vindicating at most what they consider a public right and not protecting their rights as individuals. This is to conjure the specter of the public right dogma as an inhibition to parties intent on keeping public officials staying on the path of constitutionalism. As was so well put by Jaffe: 'The protection of private rights is an essential constituent of public interest and, conversely, without a well-ordered state there could be no enforcement of private rights. Private and public interests are, both in substantive and procedural sense, aspects of the totality of the legal order.' Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach followed in Pascual v. Secretary of Public Works, foreshadowed by the very decision of People v. Vera where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents, however, would hark back to the American Supreme Court doctrine in Mellon v. Frothingham with their claim that what petitioners possess 'is an interest which is shared in common by other people and is comparatively so minute

and indeterminate as to afford any basis and assurance that the judicial process can act on it.' That is to speak in the language of a bygone era even in the United States. For as Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not breached has definitely been lowered." 11 2. The imputation of arbitrariness to the legislative body in the enactment of Batas Pambansa Blg. 129 to demonstrate lack of good faith does manifest violence to the facts. Petitioners should have exercised greater care in informing themselves as to its antecedents. They had laid themselves open to the accusation of reckless disregard for the truth, On August 7, 1980, a Presidential Committee on Judicial Reorganization was organized. 12 This Executive Order was later amended by Executive Order No. 619-A., dated September 5 of that year. It clearly specified the task assigned to it: "1. The Committee shall formulate plans on the reorganization of the Judiciary which shall be submitted within seventy (70) days from August 7, 1980 to provide the President sufficient options for the reorganization of the entire Judiciary which shall embrace all lower courts, including the Court of Appeals, the Courts of First Instance, the City and Municipal Courts, and all Special Courts, but excluding the Sandigan Bayan." 13 On October 17, 1980, a Report was submitted by such Committee on Judicial Reorganization. It began with this paragraph: "The Committee on Judicial Reorganization has the honor to submit the following Report. It expresses at the outset its appreciation for the opportunity accorded it to study ways and means for what today is a basic and urgent need, nothing less than the restructuring of the judicial system. There are problems, both grave and pressing, that call for remedial measures. The felt necessities of the time, to borrow a phrase from Holmes, admit of no delay, for if no step be taken and at the earliest opportunity, it is not too much to say that the people's faith in the administration of justice could be shaken. It is imperative that there be a greater efficiency in the disposition of cases and that litigants, especially those of modest means much more so, the poorest and the humblest can vindicate their rights in an expeditious and inexpensive manner. The rectitude and the fairness in the way the courts operate must be manifest to all members of the community and particularly to those whose interests are affected by the exercise of their functions. It is to that task that the Committee addresses itself and hopes that the plans submitted could be a starting point for an institutional reform in the Philippine judiciary. The experience of the Supreme Court, which since 1973 has been empowered to supervise inferior courts, from the Court of Appeals to the municipal courts, has proven that reliance on improved court management as well as training of judges for more efficient administration does not suffice. I hence, to repeat, there is need for a major reform in the judicial so stem it is worth noting that it will be the first of its kind since the Judiciary Act became effective on June 16, 1901." 14 I t went to say: "I t does not admit of doubt that the last two decades of this century are likely to be attended with problems of even greater complexity and delicacy. New social interests are pressing for recognition in the courts. Groups long inarticulate, primarily those economically underprivileged, have found legal spokesmen and are asserting grievances previously ignored. Fortunately, the judicially has not proved inattentive. Its task has thus become even more formidable. For so much grist is added to the mills of justice. Moreover, they are likewise to be quite novel. The need for an innovative approach is thus apparent. The national leadership, as is well-known, has been constantly on the search for solutions that will prove to be both acceptable and satisfactory. Only thus may there be continued national progress." 15 After which comes: "To be less abstract, the thrust is on development. That has been repeatedly stressed and rightly so. All efforts are geared to its realization. Nor, unlike in the past, was it to b "considered as simply the movement towards economic progress and growth measured in terms of sustained increases in per capita income and Gross National Product (GNP). 16 For the New Society, its implication goes further than economic advance, extending to "the sharing, or more appropriately, the democratization of social and economic opportunities, the substantiation of the true meaning of social justice." 17 This process of modernization and change compels the government to extend its field of activity and its scope of operations. The efforts towards reducing the gap between the

wealthy and the poor elements in the nation call for more regulatory legislation. That way the social justice and protection to labor mandates of the Constitution could be effectively implemented." 18 There is likelihood then "that some measures deemed inimical by interests adversely affected would be challenged in court on grounds of validity. Even if the question does not go that far, suits may be filed concerning their interpretation and application. ... There could be pleas for injunction or restraining orders. Lack of success of such moves would not, even so, result in their prompt final disposition. Thus delay in the execution of the policies embodied in law could thus be reasonably expected. That is not conducive to progress in development." 19 For, as mentioned in such Report, equally of vital concern is the problem of clogged dockets, which "as is well known, is one of the utmost gravity. Notwithstanding the most determined efforts exerted by the Supreme Court, through the leadership of both retired Chief Justice Querube Makalintal and the late Chief Justice Fred Ruiz Castro, from the time supervision of the courts was vested in it under the 1973 Constitution, the trend towards more and more cases has continued." 20 It is understandable why. With the accelerated economic development, the growth of population, the increasing urbanization, and other similar factors, the judiciary is called upon much oftener to resolve controversies. Thus confronted with what appears to be a crisis situation that calls for a remedy, the Batasang Pambansa had no choice. It had to act, before the ailment became even worse. Time was of the essence, and yet it did not hesitate to be duly mindful, as it ought to be, of the extent of its coverage before enacting Batas Pambansa Blg. 129. 3. There is no denying, therefore, the need for "institutional reforms," characterized in the Report as "both pressing and urgent." 21 It is worth noting, likewise, as therein pointed out, that a major reorganization of such scope, if it were to take place, would be the most thorough after four generations. 22 The reference was to the basic Judiciary Act generations . enacted in June of 1901, 23 amended in a significant way, only twice previous to the Commonwealth. There was, of course, the creation of the Court of Appeals in 1935, originally composed "of a Presiding Judge and ten appellate Judges, who shall be appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, 24 It could "sit en banc, but it may sit in two divisions, one of six and another of five Judges, to transact business, and the two divisions may sit at the same time." 25 Two years after the establishment of independence of the Republic of the Philippines, the Judiciary Act of 1948 26 was passed. It continued the existing system of regular inferior courts, namely, the Court of Appeals, Courts of First Instance, 27 the Municipal Courts, at present the City Courts, and the Justice of the Peace Courts, now the Municipal Circuit Courts and Municipal Courts. The membership of the Court of Appeals has been continuously increased. 28 Under a 1978 Presidential Decree, there would be forty-five members, a Presiding Justice and forty-four Associate Justices, with fifteen divisions. 29 Special courts were likewise created. The first was the Court of Tax Appeals in 1954, 30 next came the Court of Agrarian Relations in 1955, 31 and then in the same year a Court of the Juvenile and Domestic Relations for Manila in 1955, 32 subsequently followed by the creation of two other such courts for Iloilo and Quezon City in 1966. 33 In 1967, Circuit Criminal Courts were established, with the Judges having the same qualifications, rank, compensation, and privileges as judges of Courts of First Instance.
34

Instead of the proposal to confine the jurisdiction of the intermediate appellate court merely to appellate adjudication, the preference has been opted to increase rather than diminish its jurisdiction in order to enable it to effectively assist the Supreme Court. This preference has been translated into one of the innovations in the proposed Bill." 35 In accordance with the parliamentary procedure, the Bill was sponsored by the Chairman of the Committee on Justice, Human Rights and Good Government to which it was referred. Thereafter, Committee Report No. 225 was submitted by such Committee to the Batasang Pambansa recommending the approval with some amendments. In the sponsorship speech of Minister Ricardo C. Puno, there was reference to the Presidential Committee on Judicial Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial Reorganization submitted its report to the President which contained the 'Proposed Guidelines for Judicial Reorganization.' Cabinet Bill No. 42 was drafted substantially in accordance with the options presented by these guidelines. Some options set forth in the aforesaid report were not availed of upon consultation with and upon consensus of the government and parliamentary leadership. Moreover, some amendments to the bill were adopted by the Committee on Justice, Human Rights and Good Government, to which The bill was referred, following the public hearings on the bill held in December of 1980. The hearings consisted of dialogues with the distinguished members of the bench and the bar who had submitted written proposals, suggestions, and position papers on the bill upon the invitation of the Committee on Justice, Human Rights and Good Government." 36 Stress was laid by the sponsor that the enactment of such Cabinet Bill would, firstly, result in the attainment of more efficiency in the disposal of cases. Secondly, the improvement in the quality of justice dispensed by the courts is expected as a necessary consequence of the easing of the court's dockets. Thirdly, the structural changes introduced in the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure, are designated to suit the court system to the exigencies of the present day Philippine society, and hopefully, of the foreseeable future." 37 it may be observed that the volume containing the minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive study before the act was signed by the President on August 14, 1981. With such a background, it becomes quite manifest how lacking in factual basis is the allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is the good faith that characterized its enactment from its inception to the affixing of the Presidential signature. 5. Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine: "We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. ... And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith." 39 The above excerpt was quoted with approval in Bendanillo, Sr. v. Provincial Governor, 40 two earlier cases enunciating a similar doctrine having preceded it. 41 As with the offices in the other branches of the government, so it is with the judiciary. The test remains whether the abolition is in good faith. As that element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more apparent. The concurring opinion of Justice Laurel in Zandueta v. De la Costa 42 cannot be any clearer. This is a quo warranto proceeding filed by petitioner, claiming that he, and not respondent, was entitled to he office of judge of the Fifth Branch of the Court of First Instance of Manila. There was a Judicial Reorganization Act in 1936, 43 a year after the inauguration of the

4. After the submission of such Report, Cabinet Bill No. 42, which later became the basis of Batas Pambansa Blg. 129, was introduced. After setting forth the background as above narrated, its Explanatory Note continues: "Pursuant to the President's instructions, this proposed legislation has been drafted in accordance with the guidelines of that report with particular attention to certain objectives of the reorganization, to wit, the attainment of more efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meeting out of justice. In consultation with, and upon a consensus of, the governmental and parliamentary leadership, however, it was felt that some options set forth in the Report be not availed of.

Commonwealth, amending the Administrative Code to organize courts of original jurisdiction known as the Courts of First Instance Prior to such statute, petitioner was the incumbent of such branch. Thereafter, he received an ad interim appointment, this time to the Fourth Judicial District, under the new legislation. Unfortunately for him, the Commission on Appointments of then National Assembly disapproved the same, with respondent being appointed in his place. He contested the validity of the Act insofar as it resulted in his being forced to vacate his position This Court did not rule squarely on the matter. His petition was dismissed on the ground of estoppel. Nonetheless, the separate concurrence of Justice Laurel in the result reached, to repeat, reaffirms in no uncertain terms the standard of good faith to preclude any doubt as to the abolition of an inferior court, with due recognition of the security of tenure guarantee. Thus: " I am of the opinion that Commonwealth Act No. 145 in so far as it reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and constitutional. This conclusion flows from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of the Constitution vests in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tenure of all the judges. The principles embodied in these two sections of the same article of the Constitution must be coordinated and harmonized. A mere enunciation of a principle will not decide actual cases and controversies of every sort. (Justice Holmes in Lochner vs. New York, 198 U.S., 45; 49 Law. ed; 937)" 44 justice Laurel continued: "I am not insensible to the argument that the National Assembly may abuse its power and move deliberately to defeat the constitutional provision guaranteeing security of tenure to all judges, But, is this the case? One need not share the view of Story, Miller and Tucker on the one hand, or the opinion of Cooley, Watson and Baldwin on the other, to realize that the application of a legal or constitutional principle is necessarily factual and circumstantial and that fixity of principle is the rigidity of the dead and the unprogressive. I do say, and emphatically, however, that cases may arise where the violation of the constitutional provision regarding security of tenure is palpable and plain, and that legislative power of reorganization may be sought to cloak an unconstitutional and evil purpose. When a case of that kind arises, it will be the time to make the hammer fall and heavily. But not until then. I am satisfied that, as to the particular point here discussed, the purpose was the fulfillment of what was considered a great public need by the legislative department and that Commonwealth Act No. 145 was not enacted purposely to affect adversely the tenure of judges or of any particular judge. Under these circumstances, I am for sustaining the power of the legislative department under the Constitution. To be sure, there was greater necessity for reorganization consequent upon the establishment of the new government than at the time Acts Nos. 2347 and 4007 were approved by the defunct Philippine Legislature, and although in the case of these two Acts there was an express provision providing for the vacation by the judges of their offices whereas in the case of Commonwealth Act No. 145 doubt is engendered by its silence, this doubt should be resolved in favor of the valid exercise of the legislative power." 45 6. A few more words on the question of abolition. In the above-cited opinion of Justice Laurel in Zandueta, reference was made to Act No. 2347 46 on the reorganization of the Courts of First Instance and to Act No. 4007 47 on the reorganization of all branches of the government, including the courts of first instance. In both of them, the then Courts of First Instance were replaced by new courts with the same appellation. As Justice Laurel pointed out, there was no question as to the fact of abolition. He was equally categorical as to Commonwealth Act No. 145, where also the system of the courts of first instance was provided for expressly. It was pointed out by Justice Laurel that the mere creation of an entirely new district of the same court is valid and constitutional. such conclusion flowing "from the fundamental proposition that the legislature may abolish courts

inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions." 48 The challenged statute creates an intermediate appellate court, 49 regional trial courts, 50 metropolitan trial courts of the national capital region, 51 and other metropolitan trial courts, 52 municipal trial courts in cities, 53 as well as in municipalities, 54 and municipal circuit trial courts. 55 There is even less reason then to doubt the fact that existing inferior courts were abolished. For the Batasang Pambansa, the establishment of such new inferior courts was the appropriate response to the grave and urgent problems that pressed for solution. Certainly, there could be differences of opinion as to the appropriate remedy. The choice, however, was for the Batasan to make, not for this Court, which deals only with the question of power. It bears mentioning that in Brillo v. Eage 56 this Court, in an unanimous opinion penned by the late Justice Diokno, citing Zandueta v. De la Costa, ruled: "La segunda question que el recurrrido plantea es que la Carta de Tacloban ha abolido el puesto. Si efectivamente ha sido abolido el cargo, entonces ha quedado extinguido el derecho de recurente a ocuparlo y a cobrar el salario correspodiente. Mc Culley vs. State, 46 LRA, 567. El derecho de un juez de desempenarlo hasta los 70 aos de edad o se incapacite no priva al Congreso de su facultad de abolir, fusionar o reorganizar juzgados no constitucionales." 57 Nonetheless, such well-established principle was not held applicable to the situation there obtaining, the Charter of Tacloban City creating a city court in place of the former justice of the peace court. Thus: "Pero en el caso de autos el Juzgado de Tacloban no ha sido abolido. Solo se le ha cambiado el nombre con el cambio de forma del gobierno local." 58 The present case is anything but that. Petitioners did not and could not prove that the challenged statute was not within the bounds of legislative authority. 7. This opinion then could very well stop at this point. The implementation of Batas Pambansa Blg. 129, concededly a task incumbent on the Executive, may give rise, however, to questions affecting a judiciary that should be kept independent. The allembracing scope of the assailed legislation as far as all inferior courts from the Courts of Appeals to municipal courts are concerned, with the exception solely of the Sandiganbayan and the Court of Tax Appeals 59 gave rise, and understandably so, to misgivings as to its effect on such cherished Ideal. The first paragraph of the section on the transitory provision reads: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold the office." 60 There is all the more reason then why this Court has no choice but to inquire further into the allegation by petitioners that the security of tenure provision, an assurance of a judiciary free from extraneous influences, is thereby reduced to a barren form of words. The amended Constitution adheres even more clearly to the long-established tradition of a strong executive that antedated the 1935 Charter. As noted in the work of former Vice-Governor Hayden, a noted political scientist, President Claro M. Recto of the 1934 Convention, in his closing address, in stressing such a concept, categorically spoke of providing "an executive power which, subject to the fiscalization of the Assembly, and of public opinion, will not only know how to govern, but will actually govern, with a firm and steady hand, unembarrassed by vexatious interferences by other departments, or by unholy alliances with this and that social group." 61 The above excerpt was cited with approval by Justice Laurel in Planas v. Gil. 62 Moreover, under the 1981 Amendments, it may be affirmed that once again the principle of separation of powers, to quote from the same jurist as ponente in Angara v. Electoral Commission, 63 "obtains not through express provision but by actual division." 64 The president, under Article VII, shall be the head of state and chief executive of the Republic of the Philippines." 65 Moreover, it is equally therein expressly provided that all the powers he possessed

under the 1935 Constitution are once again vested in him unless the Batasang Pambansa provides otherwise." 66 Article VII of the 1935 Constitution speaks categorically: "The Executive power shall be vested in a President of the Philippines." 67 As originally framed, the 1973 Constitution created the position of President as the "symbolic head of state." 68 In addition, there was a provision for a Prime Minister as the head of government exercising the executive power with the assistance of the Cabinet 69 Clearly, a modified parliamentary system was established. In the light of the 1981 amendments though, this Court in Free Telephone Workers Union v. Minister of Labor 70 could state: "The adoption of certain aspects of a parliamentary system in the amended Constitution does not alter its essentially presidential character." 71 The retention, however, of the position of the Prime Minister with the Cabinet, a majority of the members of which shall come from the regional representatives of the Batasang Pambansa and the creation of an Executive Committee composed of the Prime Minister as Chairman and not more than fourteen other members at least half of whom shall be members of the Batasang Pambansa, clearly indicate the evolving nature of the system of government that is now operative. 72 What is equally apparent is that the strongest ties bind the executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority party. It is understandable then why in Fortun v. Labang 73 it was stressed that with the provision transferring to the Supreme Court administrative supervision over the Judiciary, there is a greater need "to preserve unimpaired the independence of the judiciary, especially so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches." 74 8. To be more specific, petitioners contend that the abolition of the existing inferior courts collides with the security of tenure enjoyed by incumbent Justices and judges under Article X, Section 7 of the Constitution. There was a similar provision in the 1935 Constitution. It did not, however, go as far as conferring on this Tribunal the power to supervise administratively inferior courts. 75 Moreover, this Court is em powered "to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal." 76 Thus it possesses the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. 77 Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a nonexistent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not render advisory opinions. No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power, Rather what is sought to be achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing tulle inferior courts, the power of removal of the present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernidble except to those predisposed to view it with distrust. Moreover, such a construction would be in

accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred. 78 There is an obvious way to do so. The principle that the Constitution enters into and forms part of every act to avoid any constitutional taint must be applied Nuez v. Sandiganbayan, 79 promulgated last January, has this relevant excerpt: "It is true that other Sections of the Decree could have been so worded as to avoid any constitutional objection. As of now, however, no ruling is called for. The view is given expression in the concurring and dissenting opinion of Justice Makasiar that in such a case to save the Decree from the direct fate of invalidity, they must be construed in such a way as to preclude any possible erosion on the powers vested in this Court by the Constitution. That is a proposition too plain to be committed. It commends itself for approval." 80 Nor would such a step be unprecedented. The Presidential Decree constituting Municipal Courts into Municipal Circuit Courts, specifically provides: "The Supreme Court shall carry out the provisions of this Decree through implementing orders, on a province-to-province basis." 81 It is true there is no such provision in this Act, but the spirit that informs it should not be ignored in the Executive Order contemplated under its Section 44. 82 Thus Batas Pambansa Blg. 129 could stand the most rigorous test of constitutionality. 83 9. Nor is there anything novel in the concept that this Court is called upon to reconcile or harmonize constitutional provisions. To be specific, the Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. As noted in the preceding paragraph, the termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence. That is why it has long been well-settled under the constitutional system we have adopted that this Court cannot, whenever appropriate, avoid the task of reconciliation. As Justice Laurel put it so well in the previously cited Angara decision, while in the main, "the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government, the overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins." 84 It is well to recall another classic utterance from the same jurist, even more emphatic in its affirmation of such a view, moreover buttressed by one of those insights for which Holmes was so famous "The classical separation of government powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Motesquieu or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down 'with mathematical precision and divide the branches into water-tight compartments' not only because 'the great ordinances of the Constitution do not establish and divide fields of black and white but also because 'even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.'" 85 This too from Justice Tuazon, likewise expressing with force and clarity why the need for reconciliation or balancing is well-nigh unavodiable under the fundamental principle of separation of powers: "The constitutional structure is a complicated system, and overlappings of governmental functions are recognized, unavoidable, and inherent necessities of governmental coordination." 86 In the same way that the academe has noted the existence in constitutional litigation of right versus right, there are instances, and this is one of them, where, without this attempt at harmonizing the provisions in question, there could be a case of power against power. That we should avoid. 10. There are other objections raised but they pose no difficulty. Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed.

A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is quite clear. The questioned provisions reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges, municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such receive such compensation and allowances as may be authorized by the President along the guidelines set forth in Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." 87 The existence of a standard is thus clear. The basic postulate that underlies the doctrine of nondelegation is that it is the legislative body which is entrusted with the competence to make laws and to alter and repeal them, the test being the completeness of the statue in all its terms and provisions when enacted. As pointed out in Edu v. Ericta: 88 "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole." 89 The undeniably strong links that bind the executive and legislative departments under the amended Constitution assure that the framing of policies as well as their implementation can be accomplished with unity, promptitude, and efficiency. There is accuracy, therefore, to this observation in the Free Telephone Workers Union decision: "There is accordingly more receptivity to laws leaving to administrative and executive agencies the adoption of such means as may be necessary to effectuate a valid legislative purpose. It is worth noting that a highly-respected legal scholar, Professor Jaffe, as early as 1947, could speak of delegation as the 'dynamo of modern government.'" 90 He warned against a "restrictive approach" which could be "a deterrent factor to much-needed legislation." 91 Further on this point from the same opinion" "The spectre of the non-delegation concept need not haunt, therefore, party caucuses, cabinet sessions or legislative chambers." 92 Another objection based on the absence in the statue of what petitioners refer to as a "definite time frame limitation" is equally bereft of merit. They ignore the categorical language of this provision: "The Supreme Court shall submit to the President, within thirty (30) days from the date of the effectivity of this act, a staffing pattern for all courts constituted pursuant to this Act which shall be the basis of the implementing order to be issued by the President in accordance with the immediately succeeding section." 93 The first sentence of the next section is even more categorical: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President." 94 Certainly petitioners cannot be heard to argue that the President is insensible to his constitutional duty to take care that the laws be faithfully executed. 95 In the meanwhile, the existing inferior courts affected continue functioning as before, "until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." 96 There is no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold office." No fear need be entertained by incumbents whose length of service, quality of performance, and clean record justify their being named anew, 97 in legal contemplation without any interruption in the continuity of their service. 98 It is equally reasonable to assume that from the ranks of lawyers, either in the government service, private practice, or law professors will come the new appointees. In the event that in certain cases a little more time is necessary in the appraisal of whether or not certain incumbents deserve reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its implementation by the Executive. There is pertinence to this observation of Justice Holmes

that even acceptance of the generalization that courts ordinarily should not supply omissions in a law, a generalization qualified as earlier shown by the principle that to save a statute that could be done, "there is no canon against using common sense in construing laws as saying what they obviously mean." 99 Where then is the unconstitutional flaw 11. On the morning of the hearing of this petition on September 8, 1981, petitioners sought to have the writer of this opinion and Justices Ramon C. Aquino and Ameurfina Melencio-Herrera disqualified because the first-named was the chairman and the other two, members of the Committee on Judicial Reorganization. At the hearing, the motion was denied. It was made clear then and there that not one of the three members of the Court had any hand in the framing or in the discussion of Batas Pambansa Blg. 129. They were not consulted. They did not testify. The challenged legislation is entirely the product of the efforts of the legislative body. 100 Their work was limited, as set forth in the Executive Order, to submitting alternative plan for reorganization. That is more in the nature of scholarly studies. That the undertook. There could be no possible objection to such activity. Ever since 1973, this Tribunal has had administrative supervision over interior courts. It has had the opportunity to inform itself as to the way judicial business is conducted and how it may be improved. Even prior to the 1973 Constitution, it is the recollection of the writer of this opinion that either the then Chairman or members of the Committee on Justice of the then Senate of the Philippines 101 consulted members of the Court in drafting proposed legislation affecting the judiciary. It is not inappropriate to cite this excerpt from an article in the 1975 Supreme Court Review: "In the twentieth century the Chief Justice of the United States has played a leading part in judicial reform. A variety of conditions have been responsible for the development of this role, and foremost among them has been the creation of explicit institutional structures designed to facilitate reform." 102 Also: "Thus the Chief Justice cannot avoid exposure to and direct involvement in judicial reform at the federal level and, to the extent issues of judicial federalism arise, at the state level as well." 103 12. It is a cardinal article of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or impliedly certain powers. Those they exercise not for their own benefit but for the body politic. The Constitution does not speak in the language of ambiguity: "A public office is a public trust." 104 That is more than a moral adjuration It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is from that standpoint that the security of tenure provision to assure judicial independence is to be viewed. It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. As thus viewed, it is not solely for their welfare. The challenged legislation Thus subject d to the most rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allow the erosion of that Ideal so firmly embedded in the national consciousness There is this farther thought to consider. independence in thought and action necessarily is rooted in one's mind and heart. As emphasized by former Chief Justice Paras in Ocampo v. Secretary of Justice, 105 there is no surer guarantee of judicial independence than the God-given character and fitness of those appointed to the Bench. The judges may be guaranteed a fixed tenure of office during good behavior, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be nothing more than a myth or an empty Ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress we do not say unlimited but as herein exercised to reorganize inferior courts." 106 That is to recall one of the greatest

Common Law jurists, who at the cost of his office made clear that he would not just blindly obey the King's order but "will do what becomes [him] as a judge." So it was pointed out in the first leading case stressing the independence of the judiciary, Borromeo v. Mariano, 107 The ponencia of Justice Malcolm Identified good judges with "men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government." 108 There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious consequences to the administration of justice. It does not follow that the abolition in good faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor should there be any fear that less than good faith will attend the exercise be of the appointing power vested in the Executive. It cannot be denied that an independent and efficient judiciary is something to the credit of any administration. Well and truly has it been said that the fundamental principle of separation of powers assumes, and justifiably so, that the three departments are as one in their determination to pursue the Ideals and aspirations and to fulfilling the hopes of the sovereign people as expressed in the Constitution. There is wisdom as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, 109 a decision promulgated almost half a century ago: "Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department or the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act." 110 To that basic postulate underlying our constitutional system, this Court remains committed. WHEREFORE, the unconstitutionality of Batas Pambansa Blg. 129 not having been shown, this petition is dismissed. No costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 132601 January 19, 1999 LEO ECHEGARAY, petitioner, vs. SECRETARY OF JUSTICE, ET AL., respondents. RESOLUTION PUNO, J.: For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that: 1. The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive authority; The issuance of the temporary restraining order . . . creates dangerous precedent as there will never be an end to litigation because there

3.

4.

5.

is always a possibility that Congress may repeal a law. Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable Court had in all probability been fully debated upon . . . Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, . . . the Honorable Court in issuing the TRO has transcended its power of judicial review. At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of the law imposing death penalty has become nil, to wit: a. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. The resolution of Congressman Golez, et al., that they are against the repeal of the law; The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.

b. c.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representative to reject any move to review Republic Act No. 7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter, and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Resolution was concurred in by one hundred thirteen (113) congressman. In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of judicial power and duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters involved or arising from the petition; (4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress convenes and considers all the various resolutions and bills filed before it. Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor General. We shall now resolve the basic issues raised by the public respondents. I

2.

First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as important that there should be a place to end as there should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz: ENTRY OF JUDGMENT This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the dispositive part of which reads as follows: WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision. SO ORDERED. and that the same has, on November 6, 1988 become final and executory and is hereby recorded in the Book of Entries of Judgment. Manila, Philippine. The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has caused the publication of the said Amended Rules and Regulations as required by the Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well established jurisprudence on this issue as follows: 2 xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the judgment has become final the court retains its jurisdiction to execute and enforce it. 3 There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former continues even after the judgment has become final for the purpose of enforcement of judgment; the latter terminates when the judgment becomes final. 4 . . . For after the judgment has become final facts and circumstances may transpire which can render the execution unjust or impossible. 5 In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of Prisons v. Judge of First Instance, 6 viz: This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same cannot change or alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out of the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion ( arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible that assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the (court) has performed its ministerial duty of ordering the execution . . . and its part is ended, if however a circumstance arises that ought to delay the execution, and there is an imperative duty to investigate the emergency and to order a

postponement. Then the question arises as to whom the application for postponing the execution ought to be addressed while the circumstances is under investigation and so to who has jurisdiction to make the investigation. The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonable time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law enacted by Congress.1wphi1.nt The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which, among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption that courts have the inherent, necessary and incidental power to control and supervise the process of execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as champions of justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides: Sec.13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan 10 Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these department would be a clear usurpation of its function, as is the case with the law in question." 12 The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided: xxx xxx xxx Sec.5. The Supreme Court shall have the following powers. xxx xxx xxx (5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar. 13 The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides: xxx xxx xxx Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial. To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state: xxx xxx xxx 5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the nondisclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief. 6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177

is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed. 7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date at execution set by the President would be earlier than that designated by the court. 8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall, be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest. 9. The "right to information" provision is selfexecuting. It supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature ( Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998. There was not a whimper of protest from the public respondents and they are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the convenience of litigants. II Second. We likewise reject the public respondents' contention that the "decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an executive function." 14 Public respondents cite as their authority for this proposition, Section 19, Article VII of the Constitution which reads: Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. The text and tone of this provision will not yield to the interpretation suggested by the public respondents. The provision is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also provides the authority for the President to grant amnesty with the concurrence of a majority of all the members of the Congress. The provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after their finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who become insane after his final conviction cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally assumed that due process of law will prevent the government from executing the death sentence upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effects is the same the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the power of the President to commute final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Indeed, in various States in the United States, laws have even been enacted expressly granting courts the power to suspend execution of convicts and their constitutionality has been upheld over arguments that they infringe upon the power of the President to grant reprieves. For the public respondents therefore to contend that only the Executive can protect the right to life of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three branches of our government. III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding review of the same law. When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new members whose views on capital punishment are still unexpressed. The present Congress is therefore different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and equitable considerations demand no less before allowing the State to take the life of one its citizens. The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law. He names these supervening events as follows: xxx xxx xxx a. b. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. The resolution of Congressman Golez, et al., that they are against the repeal of the law;

c.

The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.
18

G.R. No. L-3066

May 22, 1950

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659 which provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Golez resolution was signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended up 3 o'clock in the morning, the House of Representative with minor, the House of Representative with minor amendments formally adopted the Golez resolution by an overwhelming vote. House Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these developments, the Court's TRO should now be lifted as it has served its legal and humanitarian purpose. A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital punishment had been the subject of endless discussion and will probably never be settled so long as men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and antideath partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the very purpose of the Constitution and particularly the Bill of Rights to declare certain values transcendent, beyond the reach of temporary political majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who is momentarily the most hated by society. 21 IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999. The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC

RADIOWEALTH, INC., petitioner, vs. MANUEL AGREGADO, in his capacity as Auditor General of the Philippines, CASIMIRO L. DACANAY, MARIANO VASQUEZ, and FERNANDO DIZON, as chairman and members respectively of the Property Requisition Committee of the Office of the President of the Philippines, respondents. Rafael G. M. Reyes for petitioner. Office of the Solicitor General Felix Bautista Angelo, First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jose G. Bautista for respondents. PER CURIAM: This in one more case which directly affects this court but which it can not avoid. From necessity, we are forced, to our regret, to proceed in deciding it, there being no other, tribunal authorized to act. (2 Constitutional Limitations, Cooley, 870.) The question refers to the purchase and installation charges, totaling P585, of a Webster Teletalk, Model 206 MA, and Webster Telephone speakers. Under date of January 7, 1949, the Clerk of the Supreme Court certified that the purchase of this apparatus and its installation on the second and third floor of the Malacaan, Annex, which houses the Supreme Court, were of urgent character and necessary to public service. On January 10, 1949, C. L. Dacanay, Chairman of the Property Requisition Committee appointed by the President, disapproved the purchase and installation as "contrary to the provisions of paragraph four (4) of Executive Order No. 302, series of 1940, and the policy adopted by the Cabinet last year, discontinuing open market purchases," and "also a violation of the requirements of Executive Order No. 298, series of 1940." On February 7, 1949, Radiowealth, Inc., the vendor of the equipment and its accessories, took the matter up with the Auditor General with the request that the payments be approved. Radiowealth, Inc. informed the Auditor General that treasury warrant No. V-116470 was in the process of issuance to cover this amount but that the auditor for the Supreme Court refused to countersign the warrant. The Auditor General on February 11 referred the papers to the Chief Justice with his comment: The purchase of emergency supplies, materials, furniture and equipment for the use of the National Governments is governed by section 2044 of the Revised Administrative Code, Executive Order No. 298, series of 1940, Executive Order No. 302 (paragraph [6]), series of 140, and Department of Finance Order No. 7, series of 1945. It is alleged in the attached papers that the purchase by the Supreme Court of one (1) Webster Teletalk Model 206 MA and six (6) Webster Telephone Speakers, which includes installation, labor and materials, was made because of their need for an emergency, but there is no evidence to show that the requirements of the law and/or regulations aforecited had been complied with. This observation in audit has to be brought out because the Constitution enjoins the Auditor General to audit "in accordance with law and administrative regulations." In this particular case, Executive Order No. 302 constitutes one of the administrative regulations covering the procedure to be followed in making regular and emergency purchase of supplies, materials, furniture and equipment for the National Government which, of course, includes the Supreme Court. In this connection, attention is invited to the enclosed copy of the 3rd endorsement and enclosure of the Office of the President to the Supreme court, dated October 12, 1947, on a similar case of emergency purchase made by the Supreme Court from Bookman, Incorporated, which is self-explanatory.

The offshoot of the Auditor General's decision was the filing of the present petition for review by Radiowealth, Inc., praying, upon the facts above stated. (1) That the Property Requisition Committee be declared dissolved, and its powers be left to be performed by the Auditor General alone, as before under the Constitution; and that Executive Order No. 43, dated February 7, 1947, and other Orders effectuating such unlawful delegation of constitutional powers be declared unconstitutional; (2) That the respondent Auditor General be ordered to countersign the treasury warrant Annex F, in view of the nullity and inapplicability of the Executive Orders under which said respondent withholds countersignature. The Auditor General disclaims that this decision is in any way premised on or influenced by the Property Requisition Committee Chairman's action. The Solicitor General appearing for the Auditor General states that the property requisition committee's actuation is irrelevant to the disposal of this case and that it is only the Auditor General's ruling which should be reviewed under Rule 45 of the Rules of Court. Nevertheless, as the Auditor General's ruling is predicated on the same legal provisions and executive and administrative orders which the property requisition committee invokes as its authority to pass upon the court's requisition for supplies, this authority will inevitably have to be dragged into the case. And it is just as well that we go into it if only because cases of this kind which did not reach the Auditor General have arisen in the past, and such cases would arise in the future if we did not expand this opinion to comprehend the property requisition committee's presumed authority to pass on the expenditures under consideration. The distribution of powers is a fundamental maxim of constitutional law and essential to the separation of the three branches of government, separation which, though incomplete, is one of the chief characteristics of our Constitution. This principle is too well known to require elucidation. It suffices to say that in accordance with this principle the Supreme Court is independent of executive or legislative control as the Executive and the Congress are of the judiciary. But it is said that the court's independence is limited to the exercise of Judicial functions and that purchase of property does not belongs to this category. This contention formulates the respondents' major premise on which the following discussion will largely center. This court had occasion to intervene, in Province of Tarlac, etc. vs. Gale (26 Phil., 338), in a conflict between a judge of first instance and provincial officers over the disposition of the courthouse and other equipment. As that case is analogous to the case at bar in its fundamental and animating features, it will be appropriate to quote at length from it. The court, speaking through Mr. Justice Moreland, said: 2. DEPARTMENTS OF GOVERNMENTS; JUDICIARY. The judiciary being one of the coordinate branches of the government, its preservation in its integrity and effectiveness is necessary in the present form of government. 3. EXECUTIVE AND LEGISLATIVE. The three departments of government, the executive, legislative, and judicial, are not only coordinate, they are coequal and coimportant. While interdependent, in the sense that each is unable to perform its functions fully and adequately without the other, they are, nevertheless, in the most important sense independent of each other; that is to say, one department may not control or even interfere with another in the exercise of its special functions. The quality of government consists in their remaining thus independent.

4. POWERS. Under the acts of the Legislature of the Philippine Islands, the judiciary has the power to maintain its existence, and whatever is reasonably necessary to that end courts constituting the judiciary may do or order done. They have power to preserve their integrity, maintain their dignity, and to insure effectiveness in the administration of justice. 5. DUTIES OF PROVINCIAL OFFICERS. The judiciary may not be deprived of any of its essential attributes and none of them may be seriously weakened by the act of any person of official. The power to interfere is the power to control, and power to control is the power to abrogate. Officials of the government who owe a duty to the courts under the law cannot deprive the courts of anything which is vital to their functions, nor can such officials by the exercise of any judgment or discretion of their own escape an obligation to the courts the law lays upon them. 6. POWERS OF COURTS OF FIRST INSTANCE; COURT ROOM, FURNITURE, ETC. Provincial officials who, by virtue of the statute, are under an obligation to the Court of First Instance of their province to furnish court room, furniture, fixtures, supplies, equipment, etc., when, in the serious and deliberate judgment of the court, they, or any of them, are necessary for the adequate administration of justice, cannot escape that obligation except by permission of the court. 7. DUTIES OF PROVINCIAL BOARDS AND OFFICERS. Section 13 of Act No. 83, which provides that it shall be the duty of the provincial board "to provide by construction or purchase or renting suitable offices for the provincial officers, and a courthouse containing a room or rooms suitable for the holding of court and for offices for the court officials ... ," is mandatory and imposes upon the provincial board officials, as the case may be, a duty which they cannot evade at their pleasure. 8. ID.; ID.; ID. While, under said section, the provincial board may exercise certain discretion in regulating the size of the court room, or the cost of the same, or the material of which it is constructed, and the kind and quantity of furniture which is placed therein, nevertheless, the court room and offices, and the furniture and fixtures therein must be of such a character as to permit the court to exercise its functions in a reasonably effective manner, and must not be such as to impede in a material manner the administration of justice. When a conflict in judgment arises between the provincial officials and the court of the provincial officials must yield, the court being the only official which, in the last analysis, may determine under the law quoted what is necessary for its efficiency. 9. ID.; ID.; ID. If the provincial furnish to a court a room which, in the judgment of the court, is clearly inadequate and its use would seriously interfere with the orderly and dignified administration of justice, the court may refuse to accept it, and, on the refusal of the provincial officials to furnish accommodations which the court considers adequate, it has the power to procure them either directly by renting or by order to the officials whose duty it is, under the law, to furnish them. The power lies with the judge, and with him alone, to determine ultimately what is really essential for the administration of justice. 10. ID.; ID.; ID. When an adequate court room has once been furnished and is in possession of the court, the court has power to prevent its occupation, in whole or in part, by other persons to the serious detriment of the court business; and if such occupation occurs, the court may order the intruders ejected and all partitions which have been erected, dividing the court room into parts, removed.

11. ID.; ID.; ID. The provincial board has power to assign a particular room or rooms to a Court of First Instance, and may change the assignment after the same has been made when such change is reasonably necessary, provided the new rooms are reasonably adequate for the purpose of the court. The court may, however, refuse to be dispossessed of its rooms until it has been furnished with others reasonably fit and proper for the due administration of justice. 12. ID.; ID.; ID. Section 10 Act No. 83, which requires the provincial officials to furnish to the court such furniture, fixtures, and supplies as may be necessary for the proper administration of justice, is mandatory; and while a certain discretion lies with the officials who furnish the articles referred to, such as deals with color, form, style, quantity, etc., that discretion is always subject to the paramount authority of the court which, as in the case of quarters, is always the final authority determining what is necessary and essential for the proper administration of justice. 13. ID.; ID.; ID. If the provincial officials refuse to furnish the articles mentioned in the statue in sufficient quantity or at the proper time, the court has power either to purchase those things directly or, by proper proceedings, to compel the officials to perform the duty imposed upon them by law. In either case, the purchase price of the articles thus found necessary will be a legal charge on the province. (Syllabus.) We reiterate this rule. If there is any difference between the Gale case and the case before us it is that the reasoning in the former applies with peculiar and grater force in the latter because the Supreme Court derives its powers directly and immediately from the Constitution whose "distributive clause" deals mainly with the central government and finds little observance in municipal corporations or in other units of local governments. (12 C. J., 804.) Contrary to the respondents' theory, the prerogatives of this court which the Constitution secures against interference includes not only the powers to adjudicate causes but all things that are reasonably necessary for the administration of justice. So, we believe, it is within its power free from encroachment by the Executive to acquire books and other office equipment reasonably needed to the convenient transaction of its business. These implied, inherent, or incidental powers are as essential to the existence of the court as the powers specifically granted. Without the power to provide itself with appropriate instruments for the performance of its duties, the express powers with which the Constitution endows it would become useless. The court could not maintain its independence and dignity as the constitution intends if the executive personally or through subordinate officials could determine for the court what it should or use in the discharge of its functions, and when and how it should obtain them. The court's independence of the legislative branch with regard to the acquisition of fixtures, supplies and equipment is bound up with and subject to its dependence upon the Congress for appropriation. The interrelation between the court and the Congress in this regard is not so easy to define. (Fortunately there is no conflict between the legislature and the court to complicate the issues in this case.) But it is our considered opinion that this court is supreme and independent of the executive in this sphere. In the requisition for fixtures, equipment and supplies both the executive and judicial departments are on the same footing. They derive their authority from the same source and represent the sovereignty in equal degree. It stands to reason that the Chief Executive has no more authority to encroach on the Supreme Court in the choice of the instruments needed to carry on its functions than the court has to dictate to the executive what, when and how to get his. An interesting question might present itself if the Congress should invest the executive department with power to make regulations for the Supreme Court as well as for the former's offices regarding the purchase and acquisition of materials. That question again is not here, as will be seen shortly. The several executive and administrative orders which the Auditor General gives as basis for refusing to countersign the warrant proposed to

be issued, are not based on express legislation. Parenthetically, we understand that these executive and administrative orders are not being applied to the legislative department. If our information is correct, this one more argument against the respondents' insistence in extending the operation of those orders to the Supreme Court. The legislature's independence of the executive is no greater than the court's. Section 2041 of the Revised Administrative Code regulates the purchase of government supplies and directs that such purchase should be effected through the Bureau of Supply. Section 2044 creates general exceptions to the provisions of the preceding section by authorizing purchase in the open market and without the interference of the Bureau of Supply when the materials or supplies are to be used in the construction, repair or maintenance of a public work upon the occasion of any emergency involving danger to life or property, or in any case where the location of the work is remote from Manila. Sections 2041-2044 speak of departments, bureaus, and offices. They do not speak of the legislature or the Supreme Court, and it is our understanding that they were not intended to embrace either of these branches of the government. We take the word "departments" in these sections to mean the several divisions among which are distributed the functions and duties devolving upon the Chief Executive. The Supreme Court is neither a department, a bureau nor an office within the meaning of the said sections. This is a strict construction. But being in derogation of the independence of one of the two coordinate departments of governments, these sections must be interpreted strictly and doubts must be resolved in favor of that construction which would be more in harmony with the tenets of the fundamental law. It is argued that sections 2041 et seq of the Revised Administrative Code and the executive and administrative orders above mentioned are not being enforced upon the court but upon the clerk of court. The fallacy of this argument is that it overlooks the fact that the clerk is not an officer separate and distinct from the court. The clerk of court is an officer of the court entirely subordinate thereto and working under its orders. He has no functions or duties conferred by law independent of the court. No one denies the power of the Auditor General to audit, in accordance with law and administrative regulations, expenditures of funds or property pertaining to or held in trust by the government or the provinces or municipalities thereof. (Section 2, Article XI, Constitution of the Philippines.) Neither does the court claim exemption from the authority vested in the Auditor General by the Constitution to examine, audit and settle all accounts of the government or to bring to the attention of the proper administrative officer expenditures of funds or property which, in his opinion, are irregular, unnecessary, excessive and extravagant. (Section 3, Article XI, Constitution of the Philippines.) On the other hand, it can not be pretended that this authority is absolute. The constitutional provisions herein cited themselves define the limits of the Auditor General's powers, and the Constitution provides a remedy against his actions when they transcend those bounds. The Auditor General's decisions in cases affecting an executive department, bureau, office or officer are appealable to the President, and in those affecting the rights of private citizens to the Supreme Court. The Auditor General's authority to audit disapprove this court's expenditures has to limited to the conditions prescribed by the Constitution, or statute, if there be one, which did not invade the court's independence. Executive and administrative orders and regulations promulgated by officers who have no jurisdiction under the law or the Constitution over the court, can give no justification or validity to the Auditor General's decision. In the absence of express and valid legislation, (and by valid legislation we mean one which does not unreasonably infringe upon the legitimate prerogatives of the Supreme Court), the Auditor General may not question the court's expenditures except when they are, in the words of the organic law, "irregular, unnecessary, excessive and extravagant." Outside of these exceptions his duty to approve the payments is mandatory; and even when the objection is that the expenditures are irregular, unnecessary, excessive or extravagant, his decisions are not final.

The Auditor General's ruling under review does not criticize the expenditure in question on any of the above purchase and installation of a teletalk and telehome speakers in the offices of the Chief Justice and of the clerk of court has been explained in the clerk's statement; the cost of the equipment and labor has been certified to be the lowest obtainable on the market, and there is appropriation from which the items may lawfully be paid for. The petition is granted, without costs. U.S. Supreme Court MARBURY v. MADISON, 5 U.S. 137 (1803) 5 U.S. 137 (Cranch) WILLIAM MARBURY v. JAMES MADISON, Secretary of State of the United States. February Term, 1803 AT the December term 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel [5 U.S. 137, 138] severally moved the court for a rule to James Madison, secretary of state of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said president appointing them justices, &c. and that the seal of the United States was in due form affixed to the said commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison as secretary of state of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the secretary of state, or any officer in the department of state; that application has been made to the secretary of the senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate; whereupon a rule was made to show cause on the fourth day of this term. This rule having been duly served-- [5 U.S. 137, 139] Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court, and were required to give evidence, objected to be sworn, alleging that they were clerks in the department of state, and not bound to disclose any facts relating to the business or transactions of the office. The court ordered the witnesses to be sworn, and their answers taken in writing; but informed them that when the questions were asked they might state their objections to answering each particular question, if they had any. Mr. Lincoln, who had been the acting secretary of state, when the circumstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing. The court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it, and if he thought any thing was communicated to him confidentially he was not bound to disclose, nor was he obliged to state any thing which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the supreme court can award the writ of mandamus in any case. 2. Whether it will lie to a secretary of state, in any case whatever. 3. Whether in the present case the court may award a mandamus to James Madison, secretary of state. [5 U.S. 137, 153] Mr. Chief Justice MARSHALL delivered the opinion of the court. At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus [5 U.S. 137, 154] should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded. These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument. In the order in which the court has viewed this subject, the following questions have been considered and decided. 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of inquiry is, 1. Has the applicant a right to the commission he demands? His right originates in an act of congress passed in February 1801, concerning the district of Columbia. After dividing the district into two counties, the eleventh section of this law enacts, 'that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years. [5 U.S. 137, 155] It appears from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. The second section of the second article of the constitution declares, 'the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.'

The third section declares, that 'he shall commission all the officers of the United States.' An act of congress directs the secretary of state to keep the seal of the United States, 'to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the president, by and with the consent of the senate, or by the president alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the president of the United States.' These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: 1. The nomination. This is the sole act of the president, and is completely voluntary. 2. The appointment. This is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. [5 U.S. 137, 156] 3. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. 'He shall,' says that instrument, 'commission all the officers of the United States.' The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the constitution, which authorises congress 'to vest by law the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments;' thus contemplating cases where the law may direct the president to commission an officer appointed by the courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps, could not legally be refused. Although that clause of the constitution which requires the president to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same as if in practice the president had commissioned officers appointed by an authority other than his own. It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. [5 U.S. 137, 157] This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission: still the commission is not necessarily the appointment; though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done every thing to be performed by him.

Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete. The last act to be done by the president, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed converting the department [5 U.S. 137, 158] of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, 'and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the president:' 'provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the president of the United States; nor to any other instrument or act, without the special warrant of the president therefor.' The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature. It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and [5 U.S. 137, 159] the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the cooperation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed.

In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which, delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded, that the principle, claimed for its support, is established. The appointment being, under the constitution, to be made by the president personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the president also. It is not necessary that the livery should be made personally to the grantee of the office: it never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the president. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences [5 U.S. 137, 160] of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the president, and the seal of the United States, are those solemnities. This objection therefore does not touch the case. It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the president. If the executive required that every person appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the president; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point, to inquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but not that the original had been transmitted. If indeed it should appear that [5 U.S. 137, 161] the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is in law considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed. In the case of commissions, the law orders the secretary of state to record them. When therefore they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded.

A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment; still less is its acceptance. The appointment is the sole act of the president; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither the one nor the other is capable of rendering the appointment a nonentity. That this is the understanding of the government, is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission. When a person, appointed to any office, refuses to accept that office, the successor is nominated in the place of the person who [5 U.S. 137, 162] has declined to accept, and not in the place of the person who had been previously in office and had created the original vacancy. It is therefore decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the president and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years independent of the executive, the appointment was not revocable; but vested in the officer legal rights which are protected by the laws of his country. To withhold the commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry; which is, 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [5 U.S. 137, 163] The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

'In all other cases,' he says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.' And afterwards, page 109 of the same volume, he says, 'I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.' The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behoves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself, is, whether this can be arranged [5 U.S. 137, 164] with that class of cases which come under the description of damnum absque injuria-a loss without an injury. This description of cases never has been considered, and it is believed never can be considered as comprehending offices of trust, of honour or of profit. The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy. Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy. That there may be such cases is not to be questioned; but that every act of duty to be performed in any of the great departments of government constitutes such a case, is not to be admitted. By the act concerning invalids, passed in June 1794, the secretary at war is ordered to place on the pension list all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? Whatever the practice on particular occasions may be, the theory of this principle will certainly never be main- [5 U.S. 137, 165] tained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says, 'but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers: for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents by whom the king has been deceived and induced to do a temporary injustice.'

By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river, the purchaser, on paying his purchase money, becomes completely entitled to the property purchased; and on producing to the secretary of state the receipt of the treasurer upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or the patent being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition. It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act. If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule. By the constitution of the United States, the president is invested with certain important political powers, in the [5 U.S. 137, 166] exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. If this be the rule, let us inquire how it applies to the case under the consideration of the court. [5 U.S. 137, 167] The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the president according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by

law not removable at the will of the president, the rights he has acquired are protected by the law, and are not resumable by the president. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority, If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority. So, if he conceives that by virtue of his appointment he has a legal right either to the commission which has been made out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment. That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission. It is then the opinion of the court, 1. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice [5 U.S. 137, 168] of peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years. 2. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be inquired whether, 3. He is entitled to the remedy for which he applies. This depends on, 1. The nature of the writ applied for. And, 2. The power of this court. 1. The nature of the writ. Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be, 'a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice.' Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al. states with much precision and explicitness the cases in which this writ may be used. 'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and [5 U.S. 137, 169] has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.' In the

same case he says, 'this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.' In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, 'to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined or at least supposes to be consonant to right and justice.' Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. 1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination; and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered [5 U.S. 137, 170] by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law? If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is [5 U.S. 137, 171] again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right to be done to an injured individual, than if the same services were to be performed by a person not the head of a department. This opinion seems not now for the first time to be taken up in this country. It must be well recollected that in 1792 an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character. This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department. That this question might be properly settled, congress passed an act in February 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures as might be necessary to obtain an adjudication of the supreme court of the United [5 U.S. 137, 172] States on the validity of any such rights, claimed under the act aforesaid. After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list a person stating himself to be on the report of the judges. There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the court the decision was, not, that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that casethe decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. The judgment in that case is understood to have decided the merits of all claims of that description; and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list. The doctrine, therefore, now advanced is by no means a novel one. It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.

It is to deliver a commission; on which subjects the acts of congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so [5 U.S. 137, 173] appointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by another person. It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record. This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.' The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present [5 U.S. 137, 174] case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that 'the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.' It has been insisted at the bar, that as the original grant of jurisdiction to the supreme and inferior courts is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. [5 U.S. 137, 175] If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to [5 U.S. 137, 176] appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts pro- [5 U.S. 137, 177] hibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that 'no bill of attainder or ex post facto law shall be passed.' If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. EN BANC B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners, Present: G.R. No. 170165

PANGANIBAN, C.J., PUNO, - versus QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, LT./GEN. GENEROSO S. SENGA AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, COL. GILBERTO JOSE C. ROA AS THE PRE-TRIAL INVESTIGATING OFFICER, THE PROVOST MARSHALL GENERAL OF THE ARMED FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL, CORONA, CARPIO-MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ.

'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these and many other selections which might be made, it is apparent, that the framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

Respondents. Promulgated: August 15, 2006 x--------------------------------------------------------------------------- x DECISION TINGA, J.: A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their superior officers are exempt from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid under civilian law. Obedience and deference to the military chain of command and the President as commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian control. These values of obedience and deference expected of military officers are content-neutral, beyond the sway of the officers own sense of what is prudent or rash, or more elementally, of right or wrong. A selfrighteous military invites itself as the scoundrels activist solution to the ills of participatory democracy. Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo enjoining them and other military officers from testifying before Congress without the Presidents consent. Petitioners also pray for injunctive relief against a pending preliminary investigation against them, in preparation for possible court-martial proceedings, initiated within the military justice system in connection with petitioners violation of the aforementioned directive. The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount importance to our civil society, even if not determinative of the resolution of this petition. Had the relevant issue before us been the right of the Senate to compel the testimony of petitioners, the constitutional questions raised by them would have come to fore. Such a scenario could have very well been presented to the Court in such manner, without the petitioners having had to violate a direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of Staff. The solicited writs of certiorari and prohibition do not avail; the petition must be denied. I. The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the latter as the Assistant Commandant of Cadets. On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to appear at a public hearing before the Senate Committee on National Defense and Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had

been designated as commander, and Col. Balutan a member, of Joint Task Force Ranao by the AFP Southern Command. Joint Task Force Ranao was tasked with the maintenance of peace and order during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur. ` Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless directed other officers from the AFP who were invited to attend the hearing. On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the hearing. Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to the PMA Superintendent. On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that some of the invited officers also could not attend as they were attending to other urgent operational matters. By this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing. Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA Superintendent from the office of Gen. Senga, stating as follows: PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no approval has been granted by the President to any AFP officer to appear before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both testified as to the conduct of the 2004 elections. The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of the AFP Command Center had attempted to deliver the radio message to Gen. Gudanis residence in a subdivision in Paraaque City late in the night of 27 September 2005, but they were not permitted entry by the subdivision guards. The next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen. Sengas letter to Sen. Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take Gen. Sengas call. A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a statement which noted that the two had appeared before the Senate Committee in spite of the fact that a

guidance has been given that a Presidential approval should be sought prior to such an appearance; that such directive was in keeping with the time[-]honored principle of the Chain of Command; and that the two officers disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial proceedings x x x Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then. On the very day of the hearing, 28 September 2005, President GloriaMacapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval. This Court subsequently ruled on the constitutionality of the said executive order in Senate v. Ermita. The relevance of E.O. 464 and Senate to the present petition shall be discussed forthwith. In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both petitioners invoked their right to remain silent. The following day, Gen. Gudani was compulsorily retired from military service, having reached the age of 56. In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on conduct prejudicial to the good order and military discipline. As recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM). Consequently, on 24 October 2005, petitioners were separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at the PreTrial Investigation of the Charges for violation of Articles 65 and 97 of Commonwealth Act No. 408, and to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate General. The Orders were accompanied by respective charge sheets against petitioners, accusing them of violating Articles of War 65 and 97. It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying before Congress without her prior approval be declared unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a consequence of their having testified before the Senate on 28 September 2005. Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP personnel appear before Congress as a gag order, which violates the principle of separation of powers in government as it interferes with the investigation of the Senate Committee conducted in aid of legislation. They also equate the gag order with culpable violation of the Constitution, particularly in relation to the publics constitutional right to information and transparency in matters of public concern. Plaintively, petitioners claim that the Filipino people have every right to hear the [petitioners] testimonies, and even if the gag order were unconstitutional, it still was tantamount to the crime of obstruction of justice. Petitioners further argue that there was no law prohibiting them from testifying before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct inquiries in aid of legislation. Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the Articles of War defines persons subject to military law as all officers and soldiers in the active service of the AFP.

II. We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering that per records, petitioners have not yet been subjected to court martial proceedings. Owing to the absence of such proceedings, the correct inquiry should be limited to whether respondents could properly initiate such proceedings preparatory to a formal court-martial, such as the aforementioned preliminary investigation, on the basis of petitioners acts surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle that it is not a trier of facts at first instance, is averse to making any authoritative findings of fact, for that function is first for the court-martial court to fulfill. Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing and testified before the Committee, despite the fact that the day before, there was an order from Gen. Senga (which in turn was sourced per instruction from President Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not precisely admit before this Court that they had learned of such order prior to their testimony, although the OSG asserts that at the very least, Gen. Gudani already knew of such order before he testified. Yet while this fact may be ultimately material in the court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the Articles of War. What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga, which emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be acknowledged as a general principle that AFP personnel of whatever rank are liable under military law for violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so. III. Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga not to appear before the Senate Committee, an order that stands independent of the executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege, as among those public officials required in Section 3 of E.O. 464 to secure prior consent of the President prior to appearing before either House of Congress. The Court in Senate declared both Section 2(b) and Section 3 void, and the impression may have been left following Senate that it settled as doctrine, that the President is prohibited from requiring military personnel from attending congressional hearings without having first secured prior presidential consent. That impression is wrong. Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval before appearing before Congress, the notion of executive control also comes into consideration. However, the ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent specie of presidential authoritythe commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control.

During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the issues raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners herein were not called to task for violating the executive order. Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the aegis of the commander-in-chief powers to require military officials from securing prior consent before appearing before Congress. The pertinent factors in considering that question are markedly outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this petition that those factors come into play. At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to military law as, among others, all officers and soldiers in the active service of the [AFP], and points out that he is no longer in the active service. This point was settled against Gen. Gudanis position in Abadilla v. Ramos, where the Court declared that an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held: The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.

right to a discharge is complete, proceedings with a view to trial are commenced against him as by arrest or the service of charges, the military jurisdiction will fully attach and once attached may be continued by a trial by court-martial ordered and held after the end of the term of the enlistment of the accused x x x Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No. 1638, as amended, [a]n officer or enlisted man carried in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of War x x x To this citation, petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudanis retirement as an issue in their subsequent memorandum. IV. We now turn to the central issues. Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to their appearance before the Senate, claiming that it violates the constitutional right to information and transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of obstruction of justice and grave coercion. However, the proper perspective from which to consider this issue entails the examination of the basis and authority of the President to issue such an order in the first place to members of the AFP and the determination of whether such an order is subject to any limitations. The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy over the military, and to the general stability of our representative system of government. The Constitution reposes final authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commanderin-chief represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy over the military also countermands the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches and seizures. Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to the legislative and executive branches of government in relation to military affairs. Military appropriations, as with all other appropriations, are determined by Congress, as is the power to declare the existence of a state of war. Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ of habeas corpus. The approval of the Commission on Appointments is also required before the President can promote military officers from the rank of colonel or naval captain. Otherwise, on the particulars of civilian dominance and administration over the military, the Constitution is silent, except for the commander-in-chief clause which is fertile in meaning and implication as to whatever inherent martial authority the President may possess. The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration that [t]he President shall be the Commander-in-Chief of all armed forces of the Philippines x x x Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commanderin-chief clause vests on the President, as commander-in-chief, absolute

Citing Colonel Winthrops treatise on Military Law, the Court further stated: We have gone through the treatise of Colonel Winthrop and We find the following passage which goes against the contention of the petitioners, viz 3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in regard to military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the termination of their legal period of service, they may be brought to trial by court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been applied to cases where the offense was committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day on which his service legally terminates and his

authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law. Reference to Kapunan, Jr. v. De Villa is useful in this regard. Lt. Col. Kapunan was ordered confined under house arrest by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press statements or give any press conference during his period of detention. The Court unanimously upheld such restrictions, noting: [T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid that certain liberties of persons in the military service, including the freedom of speech, may be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.

soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their opinion of the Presidents intent], and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised. Further traditional restrictions on members of the armed forces are those imposed on free speech and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the speech of a soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such restraint. It is integral to military discipline that the soldiers speech be with the consent and approval of the military commander. The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to speak freely on political matters. The Constitution requires that [t]he armed forces shall be insulated from partisan politics, and that [n]o member of the military shall engage directly or indirectly in any partisan political activity, except to vote. Certainly, no constitutional provision or military indoctrination will eliminate a soldiers ability to form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a potential source of discord among people, and a military torn by political strife is incapable of fulfilling its constitutional function as protectors of the people and of the State. For another, it is ruinous to military discipline to foment an atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust. This fundamental principle averts the country from going the way of banana republics. Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by regime changes wherein active military dissent from the chain of command formed a key, though not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms on a politicized military, informed as they are on the trauma of absolute martial rule. Our history might imply that a political military is part of the natural order, but this view cannot be affirmed by the legal order. The evolutionary path of our young democracy necessitates a reorientation from this view, reliant as our socio-political culture has become on it. At the same time, evolution mandates a similar demand that our system of governance be more responsive to the needs and aspirations of the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an undue influence in our polity. Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary restriction on members of the military. A soldier cannot leave his/her post without the consent of the commanding officer. The reasons are self-evident. The commanding officer has to be aware at all times of the location of the troops under command, so as to be able to appropriately respond to any exigencies. For the same reason, commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices during the period of conscription, wherein the higher duty is not to self but to country. Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before he/she may leave his destination. A soldier who goes from the properly appointed place of duty or absents from his/her command, guard, quarters, station, or camp without proper leave is subject to punishment by court-martial. It is even clear from the record that petitioners had actually requested for travel authority from the PMA in Baguio City to Manila, to attend the Senate Hearing. Even petitioners are well aware that it was necessary for them to obtain

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot abide by these limitations normally do not pursue a military career and instead find satisfaction in other fields; and in fact many of those discharged from the service are inspired in their later careers precisely by their rebellion against the regimentation of military life. Inability or unwillingness to cope with military discipline is not a stain on character, for the military mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer themselves to be part of. But for those who do make the choice to be a soldier, significant concessions to personal freedoms are expected. After all, if need be, the men and women of the armed forces may be commanded upon to die for country, even against their personal inclinations. It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the democratic system of governance. The constitutional role of the armed forces is as protector of the people and of the State. Towards this end, the military must insist upon a respect for duty and a discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past. In the end, it must be borne in mind that the armed forces has a distinct subculture with unique needs, a specialized society separate from civilian society. In the elegant prose of the eminent British military historian, John Keegan: [Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They are those of a world apart, a very ancient world, which exists in parallel with the everyday world but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian. It follows it, however, at a distance. The distance can never be closed, for the culture of the warrior can never be that of civilization itself.

Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior officer is punishable by court-martial under Article 65 of the Articles of War. An individual

permission from their superiors before they could travel to Manila to attend the Senate Hearing. It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed. They seek to be exempted from military justice for having traveled to the Senate to testify before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners position is affirmed, a considerable exception would be carved from the unimpeachable right of military officers to restrict the speech and movement of their juniors. The ruinous consequences to the chain of command and military discipline simply cannot warrant the Courts imprimatur on petitioners position. V. Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding to an invitation from the Philippine Senate, a component of the legislative branch of government. At the same time, the order for them not to testify ultimately came from the President, the head of the executive branch of government and the commander-in-chief of the armed forces. Thus, we have to consider the question: may the President prevent a member of the armed forces from testifying before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute. Explication of these principles is in order. As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on specified grounds. However, the ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and speech of members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege. Our ruling that the President could, as a general rule, require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that the Presidents ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces. At the same time, the refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of inquiries in aid of legislation. Inasmuch as it is ill-advised for

Congress to interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congresss right to conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement today that the President has the right to require prior consent from members of the armed forces, the clash may soon loom or actualize. We believe and hold that our constitutional and legal order sanctions a modality by which members of the military may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executives prerogatives as commanderin-chief. The remedy lies with the courts. The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable interplay between the legislative and executive branches, informed by due deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the other branches of government.

As evidenced by Arnault v. Nazareno and Bengzon v. Senate Blue Ribbon Committee, among others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative inquiry. Arnault recognized that the legislative power of inquiry and the process to enforce it, is an essential and appropriate auxiliary to the legislative function. On the other hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is circumscribed by Section 21, Article VI of the Constitution. From these premises, the Court enjoined the Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing evidence before the committee, holding that the inquiry in question did not involve any intended legislation. Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on the constitutional power of congressional inquiry. Thus: As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. As evidenced by the American experience during the so-called McCarthy era, however, the right of Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution. For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such result as occurred in Bengzon is to indicate in its invitations to

the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction.

acceptable solution to the impasse. After all, the two branches, exercising as they do functions and responsibilities that are political in nature, are free to smooth over the thorns in their relationship with a salve of their own choosing. And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the President has earlier disagreed with the notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts. Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on them and other military officers not to testify before Congress without the Presidents consent. Yet these issues ultimately detract from the main point that they testified before the Senate despite an order from their commanding officer and their commander-in-chief for them not to do so, in contravention of the traditions of military discipline which we affirm today. The issues raised by petitioners could have very well been raised and properly adjudicated if the proper procedure was observed. Petitioners could have been appropriately allowed to testify before the Senate without having to countermand their Commander-in-chief and superior officer under the setup we have prescribed. We consider the other issues raised by petitioners unnecessary to the resolution of this petition. Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is the Constitution, the embodiment of the national conscience. The Constitution simply does not permit the infraction which petitioners have allegedly committed, and moreover, provides for an orderly manner by which the same result could have been achieved without offending constitutional principles. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 131719 May 25, 2004

In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from testifying before Congress without the Presidents consent notwithstanding the invocation of executive privilege to justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging instead that the viability of executive privilege stood on a case to case basis. Should neither branch yield to the other branchs assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries. Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of the executive branch or the armed forces, the persons who wield authority and control over the actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses against the same whether grounded on executive privilege, national security or similar concerns would be accorded due judicial evaluation. All the constitutional considerations pertinent to either branch of government may be raised, assessed, and ultimately weighed against each other. And once the courts speak with finality, both branches of government have no option but to comply with the decision of the courts, whether the effect of the decision is to their liking or disfavor. Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the legislative and executive branches of government on the proper constitutional parameters of power. This is the fair and workable solution implicit in the constitutional allocation of powers among the three branches of government. The judicial filter helps assure that the particularities of each case would ultimately govern, rather than any overarching principle unduly inclined towards one branch of government at the expense of the other. The procedure may not move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review does not preclude the legislative and executive branches from negotiating a mutually

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF LABOR AND EMPLOYMENT, AND THE SECRETARY OF FOREIGN AFFAIRS, OWWA PUNO, ADMINISTRATOR, and POEA ADMINISTRATOR, petitioners, vs. THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL PHILIPPINE CHAPTER (ARCO-PHIL.), INC., representing its members: Worldcare Services Internationale, Inc., Steadfast International Recruitment Corporation, Dragon International Manpower Services Corporation, Verdant Manpower Mobilization Corporation, Brent Overseas Personnel, Inc., ARL Manpower Services, Inc., Dahlzhen International Services, Inc., Interworld Placement Center, Inc., Lakas Tao Contract Services, Ltd. Co., and SSC Multiservices, respondents. DECISION

CALLEJO, SR., J.: In this petition for review on certiorari, the Executive Secretary of the President of the Philippines, the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of Labor and Employment, the POEA Administrator and the OWWA Administrator, through the Office of the Solicitor General, assail the Decision1 of the Court of Appeals in CA-G.R. SP No. 38815 affirming the Order2 of the Regional Trial Court of Quezon City dated August 21, 1995 in Civil Case No. Q-95-24401, granting the plea of the petitioners therein for a writ of preliminary injunction and of the writ of preliminary injunction issued by the trial court on August 24, 1995. The Antecedents Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995 was, thereafter, published in the April 7, 1996 issue of the Manila Bulletin. However, even before the law took effect, the Asian Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on July 17, 1995, a petition for declaratory relief under Rule 63 of the Rules of Court with the Regional Trial Court of Quezon City to declare as unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the issuance of a temporary restraining order and/or writ of preliminary injunction enjoining the respondents therein from enforcing the assailed provisions of the law. In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042 was self-executory and that no implementing rules were needed. It prayed that the court issue a temporary restraining order to enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7 on penalties for illegal recruitment, and Section 9 on venue of criminal actions for illegal recruitments, viz: Viewed in the light of the foregoing discussions, there appears to be urgent an imperative need for this Honorable Court to maintain the status quo by enjoining the implementation or effectivity of the questioned provisions of RA 8042, by way of a restraining order otherwise, the member recruitment agencies of the petitioner will suffer grave or irreparable damage or injury. With the effectivity of RA 8042, a great majority of the duly licensed recruitment agencies have stopped or suspended their operations for fear of being prosecuted under the provisions of a law that are unjust and unconstitutional. This Honorable Court may take judicial notice of the fact that processing of deployment papers of overseas workers for the past weeks have come to a standstill at the POEA and this has affected thousands of workers everyday just because of the enactment of RA 8042. Indeed, this has far reaching effects not only to survival of the overseas manpower supply industry and the active participating recruitment agencies, the countrys economy which has survived mainly due to the dollar remittances of the overseas workers but more importantly, to the poor and the needy who are in dire need of income-generating jobs which can only be obtained from abroad. The loss or injury that the recruitment agencies will suffer will then be immeasurable and irreparable. As of now, even foreign employers have already reduced their manpower requirements from the Philippines due to their knowledge that RA 8042 prejudiced and adversely affected the local recruitment agencies.3 On August 1, 1995, the trial court issued a temporary restraining order effective for a period of only twenty (20) days therefrom.

After the petitioners filed their comment on the petition, the ARCO-Phil. filed an amended petition, the amendments consisting in the inclusion in the caption thereof eleven (11) other corporations which it alleged were its members and which it represented in the suit, and a plea for a temporary restraining order enjoining the respondents from enforcing Section 6 subsection (i), Section 6 subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs 1 and 2, and Sections 11 and 40 of Rep. Act No. 8042. The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection (a) to (m), Section 7(a) to (b), and Section 10 paragraphs (1) and (2), quoted as follows: (g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO ALL MIGRANT WORKERS IS THE POSSESSION OF SKILLS. PURSUANT TO THIS AND AS SOON AS PRACTICABLE, THE GOVERNMENT SHALL DEPLOY AND/OR ALLOW THE DEPLOYMENT ONLY OF SKILLED FILIPINO WORKERS.4 Sec. 2 subsection (i, 2nd par.) Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based, by local service contractors and manning agents employing them shall be encourages (sic). Appropriate incentives may be extended to them. II. ILLEGAL RECRUITMENT SEC. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall, likewise, include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. SEC. 7. Penalties. (a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than six (6) years and

one (1) day but not more than twelve (12) years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00). (b) The penalty of life imprisonment and a fine of not less than five hundred thousand pesos (P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. Sec. 8. Prohibition on Officials and Employees. It shall be unlawful for any official or employee of the Department of Labor and Employment, the Philippine Overseas Employment Administration (POEA), or the Overseas Workers Welfare Administration (OWWA), or the Department of Foreign Affairs, or other government agencies involved in the implementation of this Act, or their relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting migrant workers as defined in this Act. The penalties provided in the immediate preceding paragraph shall be imposed upon them. (underscoring supplied) Sec. 10, pars. 1 & 2. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. The preliminary investigations of cases under this Act shall be terminated within a period of thirty (30) calendar days from the date of their filing. Where the preliminary investigation is conducted by a prosecution officer and a prima facie case is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecution officer within forty-eight (48) hours from the date of receipt of the records of the case.

The respondent averred that the aforequoted provisions of Rep. Act No. 8042 violate Section 1, Article III of the Constitution. 5 According to the respondent, Section 6(g) and (i) discriminated against unskilled workers and their families and, as such, violated the equal protection clause, as well as Article II, Section 126 and Article XV, Sections 1 7 and 3(3) of the Constitution.8 As the law encouraged the deployment of skilled Filipino workers, only overseas skilled workers are granted rights. The respondent stressed that unskilled workers also have the right to seek employment abroad. According to the respondent, the right of unskilled workers to due process is violated because they are prevented from finding employment and earning a living abroad. It cannot be argued that skilled workers are immune from abuses by employers, while unskilled workers are merely prone to such abuses. It was pointed out that both skilled and unskilled workers are subjected to abuses by foreign employers. Furthermore, the prohibition of the deployment of unskilled workers abroad would only encourage fly-by-night illegal recruiters. According to the respondent, the grant of incentives to service contractors and manning agencies to the exclusion of all other licensed and authorized recruiters is an invalid classification. Licensed and authorized recruiters are thus deprived of their right to property and due process and to the "equality of the person." It is understandable for the law to prohibit illegal recruiters, but to discriminate against licensed and registered recruiters is unconstitutional. The respondent, likewise, alleged that Section 6, subsections (a) to (m) is unconstitutional because licensed and authorized recruitment agencies are placed on equal footing with illegal recruiters. It contended that while the Labor Code distinguished between recruiters who are holders of licenses and non-holders thereof in the imposition of penalties, Rep. Act No. 8042 does not make any distinction. The penalties in Section 7(a) and (b) being based on an invalid classification are, therefore, repugnant to the equal protection clause, besides being excessive; hence, such penalties are violative of Section 19(1), Article III of the Constitution. 9 It was also pointed out that the penalty for officers/officials/employees of recruitment agencies who are found guilty of economic sabotage or large-scale illegal recruitment under Rep. Act No. 8042 is life imprisonment. Since recruitment agencies usually operate with a manpower of more than three persons, such agencies are forced to shut down, lest their officers and/or employees be charged with large scale illegal recruitment or economic sabotage and sentenced to life imprisonment. Thus, the penalty imposed by law, being disproportionate to the prohibited acts, discourages the business of licensed and registered recruitment agencies. The respondent also posited that Section 6(m) and paragraphs (15) and (16), Sections 8, 9 and 10, paragraph 2 of the law violate Section 22, Article III of the Constitution 10 prohibiting ex-post facto laws and bills of attainder. This is because the provisions presume that a licensed and registered recruitment agency is guilty of illegal recruitment involving economic sabotage, upon a finding that it committed any of the prohibited acts under the law. Furthermore, officials, employees and their relatives are presumed guilty of illegal recruitment involving economic sabotage upon such finding that they committed any of the said prohibited acts. The respondent further argued that the 90-day period in Section 10, paragraph (1) within which a labor arbiter should decide a money claim is relatively short, and could deprive licensed and registered recruiters of their right to due process. The period within which the summons and the complaint would be served on foreign employees and, thereafter, the filing of the answer to the complaint would take more than 90 days. This would thereby shift on local licensed and authorized recruiters the burden of proving the defense of foreign employers. Furthermore, the respondent asserted, Section 10, paragraph 2 of the law, which provides for the joint and several liability of the officers and employees, is a bill of attainder and a violation of the right of the said corporate officers and employees to due process. Considering that such corporate officers and employees act with prior approval of the board of directors of such corporation, they should not be liable, jointly and severally, for such corporate acts. The respondent asserted that the following provisions of the law are unconstitutional:

SEC. 9. Venue. A criminal action arising from illegal recruitment as defined herein shall be filed with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts: Provided, however, That the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act. SEC. 10. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. Sec. 40. The departments and agencies charged with carrying out the provisions of this Act shall, within ninety (90) days after the effectiviy of this Act, formulate the necessary rules and regulations for its effective implementation. According to the respondent, the said provisions violate Section 5(5), Article VIII of the Constitution11 because they impair the power of the Supreme Court to promulgate rules of procedure. In their answer to the petition, the petitioners alleged, inter alia, that (a) the respondent has no cause of action for a declaratory relief; (b) the petition was premature as the rules implementing Rep. Act No. 8042 not having been released as yet; (c) the assailed provisions do not violate any provisions of the Constitution; and, (d) the law was approved by Congress in the exercise of the police power of the State. In opposition to the respondents plea for injunctive relief, the petitioners averred that: As earlier shown, the amended petition for declaratory relief is devoid of merit for failure of petitioner to demonstrate convincingly that the assailed law is unconstitutional, apart from the defect and impropriety of the petition. One who attacks a statute, alleging unconstitutionality must prove its invalidity beyond reasonable doubt (Caleon v. Agus Development Corporation, 207 SCRA 748). All reasonable doubts should be resolved in favor of the constitutionality of a statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is based on the doctrine of separation of powers which enjoin upon each department a becoming respect for the acts of the other departments (Garcia vs. Executive Secretary , 204 SCRA 516 [1991]). Necessarily, the ancillary remedy of a temporary restraining order and/or a writ of preliminary injunction prayed for must fall. Besides, an act of legislature approved by the executive is presumed to be within constitutional bounds (National Press Club v. Commission on Elections , 207 SCRA 1).12 After the respective counsels of the parties were heard on oral arguments, the trial court issued on August 21, 1995, an order granting the petitioners plea for a writ of preliminary injunction upon a bond of P50,000. The petitioner posted the requisite bond and on August 24, 1995, the trial court issued a writ of preliminary injunction enjoining the enforcement of the following provisions of Rep. Act No. 8042 pending the termination of the proceedings: Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars. 15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2; Section 11; and Section 40 of Republic Act No. 8042, otherwise known

as the Migrant Workers and Overseas Filipinos Act of 1995.

The petitioners filed a petition for certiorari with the Court of Appeals assailing the order and the writ of preliminary injunction issued by the trial court on the following grounds: 1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-agencies to be protected by the injunctive relief and/or violation of said rights by the enforcement of the assailed sections of R.A. 8042; 2. Respondent Judge fixed a P50,000 injunction bond which is grossly inadequate to answer for the damage which petitionerofficials may sustain, should respondent ARCO-PHIL. be finally adjudged as not being entitled thereto.14 The petitioners asserted that the respondent is not the real party-in-interest as petitioner in the trial court. It is inconceivable how the respondent, a non-stock and non-profit corporation, could sustain direct injury as a result of the enforcement of the law. They argued that if, at all, any damage would result in the implementation of the law, it is the licensed and registered recruitment agencies and/or the unskilled Filipino migrant workers discriminated against who would sustain the said injury or damage, not the respondent. The respondent, as petitioner in the trial court, was burdened to adduce preponderant evidence of such irreparable injury, but failed to do so. The petitioners further insisted that the petition a quo was premature since the rules and regulations implementing the law had yet to be promulgated when such petition was filed. Finally, the petitioners averred that the respondent failed to establish the requisites for the issuance of a writ of preliminary injunction against the enforcement of the law and the rules and regulations issued implementing the same. On December 5, 1997, the appellate court came out with a four-page decision dismissing the petition and affirming the assailed order and writ of preliminary injunction issued by the trial court. The appellate court, likewise, denied the petitioners motion for reconsideration of the said decision. The petitioners now come to this Court in a petition for review on certiorari on the following grounds: 1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-agencies to be protected by the injunctive relief and/or violation of said rights by the enforcement of the assailed sections of R.A. 8042; 2. The P50,000 injunction bond fixed by the court a quo and sustained by the Court of Appeals is grossly inadequate to answer for the damage which petitioners-officials may sustain, should private respondent ARCO-PHIL. be finally adjudged as not being entitled thereto.15 On February 16, 1998, this Court issued a temporary restraining order enjoining the respondents from enforcing the assailed order and writ of preliminary injunction. The Issues The core issue in this case is whether or not the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed order and the writ of preliminary injunction on a bond of only P50,000 and whether or not the appellate court erred in affirming the trial courts order and the writ of preliminary injunction issued by it. The petitioners contend that the respondent has no locus standi. It is a nonstock, non-profit organization; hence, not the real party-in-interest as petitioner in the action. Although the respondent filed the petition in the Regional Trial Court in behalf of licensed and registered recruitment

agencies, it failed to adduce in evidence a certified copy of its Articles of Incorporation and the resolutions of the said members authorizing it to represent the said agencies in the proceedings. Neither is the suit of the respondent a class suit so as to vest in it a personality to assail Rep. Act No. 8042; the respondent is service-oriented while the recruitment agencies it purports to represent are profit-oriented. The petitioners assert that the law is presumed constitutional and, as such, the respondent was burdened to make a case strong enough to overcome such presumption and establish a clear right to injunctive relief. The petitioners bewail the P50,000 bond fixed by the trial court for the issuance of a writ of preliminary injunction and affirmed by the appellate court. They assert that the amount is grossly inadequate to answer for any damages that the general public may suffer by reason of the nonenforcement of the assailed provisions of the law. The trial court committed a grave abuse of its discretion in granting the respondents plea for injunctive relief, and the appellate court erred in affirming the order and the writ of preliminary injunction issued by the trial court. The respondent, for its part, asserts that it has duly established its locus standi and its right to injunctive relief as gleaned from its pleadings and the appendages thereto. Under Section 5, Rule 58 of the Rules of Court, it was incumbent on the petitioners, as respondents in the RTC, to show cause why no injunction should issue. It avers that the injunction bond posted by the respondent was more than adequate to answer for any injury or damage the petitioners may suffer, if any, by reason of the writ of preliminary injunction issued by the RTC. In any event, the assailed provisions of Rep. Act No. 8042 exposed its members to the immediate and irreparable damage of being deprived of their right to a livelihood without due process, a property right protected under the Constitution. The respondent contends that the commendable purpose of the law to eradicate illegal recruiters should not be done at the expense and to the prejudice of licensed and authorized recruitment agencies. The writ of preliminary injunction was necessitated by the great number of duly licensed recruitment agencies that had stopped or suspended their business operations for fear that their officers and employees would be indicted and prosecuted under the assailed oppressive penal provisions of the law, and meted excessive penalties. The respondent, likewise, urges that the Court should take judicial notice that the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA. The Courts Ruling The petition is meritorious. The Respondent Has Locus Standi To File the Petition in the RTC in Representation of the Eleven Licensed and Registered Recruitment Agencies Impleaded in the Amended Petition The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members.16 An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents. 17 In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections,18 we held that standing jus tertii would be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that the right of the third party would be diluted unless the party in court is allowed to espouse the third partys constitutional claims. In this case, the respondent filed the petition for declaratory relief under Rule 64 of the Rules of Court for and in behalf of its eleven (11) licensed and registered recruitment agencies which are its members, and which approved separate resolutions expressly authorizing the respondent to file the said suit for and in their behalf. We note that, under its Articles of Incorporation, the respondent was organized for the purposes inter alia of

promoting and supporting the growth and development of the manpower recruitment industry, both in the local and international levels; providing, creating and exploring employment opportunities for the exclusive benefit of its general membership; enhancing and promoting the general welfare and protection of Filipino workers; and, to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. The respondent asserts that the assailed provisions violate the constitutional rights of its members and the officers and employees thereof. The respondent is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances.19 However, the respondent has no locus standi to file the petition for and in behalf of unskilled workers. We note that it even failed to implead any unskilled workers in its petition. Furthermore, in failing to implead, as parties-petitioners, the eleven licensed and registered recruitment agencies it claimed to represent, the respondent failed to comply with Section 2 of Rule 6320 of the Rules of Court. Nevertheless, since the eleven licensed and registered recruitment agencies for which the respondent filed the suit are specifically named in the petition, the amended petition is deemed amended to avoid multiplicity of suits.21 The Assailed Order and Writ of Preliminary Injunction Is Mooted By Case Law The respondent justified its plea for injunctive relief on the allegation in its amended petition that its members are exposed to the immediate and irreparable danger of being deprived of their right to a livelihood and other constitutional rights without due process, on its claim that a great number of duly licensed recruitment agencies have stopped or suspended their operations for fear that (a) their officers and employees would be prosecuted under the unjust and unconstitutional penal provisions of Rep. Act No. 8042 and meted equally unjust and excessive penalties, including life imprisonment, for illegal recruitment and large scale illegal recruitment without regard to whether the recruitment agencies involved are licensed and/or authorized; and, (b) if the members of the respondent, which are licensed and authorized, decide to continue with their businesses, they face the stigma and the curse of being labeled "illegal recruiters." In granting the respondents plea for a writ of preliminary injunction, the trial court held, without stating the factual and legal basis therefor, that the enforcement of Rep. Act No. 8042, pendente lite, would cause grave and irreparable injury to the respondent until the case is decided on its merits. We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995, the Court had, in a catena of cases, applied the penal provisions in Section 6, including paragraph (m) thereof, and the last two paragraphs therein defining large scale illegal recruitment committed by officers and/or employees of recruitment agencies by themselves and in connivance with private individuals, and imposed the penalties provided in Section 7 thereof, including the penalty of life imprisonment. 22 The Informations therein were filed after preliminary investigations as provided for in Section 11 of Rep. Act No. 8042 and in venues as provided for in Section 9 of the said act. In People v. Chowdury,23 we held that illegal recruitment is a crime of economic sabotage and must be enforced. In People v. Diaz,24 we held that Rep. Act No. 8042 is but an amendment of the Labor Code of the Philippines and is not an ex-post facto law because it is not applied retroactively. In JMM Promotion and Management, Inc. v. Court of Appeals,25 the issue of the extent of the police power of the State to regulate a business, profession or calling vis--vis the equal protection clause and the non-impairment clause of the Constitution were raised and we held, thus: A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be

deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others. In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider. To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the Professional Regulation Commission has begun to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists. Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution must yield to the loftier purposes targeted by the government." Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare. A last point. Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution. We do not agree. The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed. We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation. If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee.26 The validity of Section 6 of R.A. No. 8042 which provides that employees of recruitment agencies may be criminally liable for illegal recruitment has been upheld in People v. Chowdury:27

As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable for illegal recruitment are the principals, accomplices and accessories. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. It has been held that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The corporation obviously acts, and can act, only by and through its human agents, and it is their conduct which the law must deter. The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be. 28 By its rulings, the Court thereby affirmed the validity of the assailed penal and procedural provisions of Rep. Act No. 8042, including the imposable penalties therefor. Until the Court, by final judgment, declares that the said provisions are unconstitutional, the enforcement of the said provisions cannot be enjoined. The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or Lack of Jurisdiction in Issuing the Assailed Order and the Writ of Preliminary Injunction The matter of whether to issue a writ of preliminary injunction or not is addressed to the sound discretion of the trial court. However, if the court commits grave abuse of its discretion in issuing the said writ amounting to excess or lack of jurisdiction, the same may be nullified via a writ of certiorari and prohibition. In Social Security Commission v. Judge Bayona, 29 we ruled that a law is presumed constitutional until otherwise declared by judicial interpretation. The suspension of the operation of the law is a matter of extreme delicacy because it is an interference with the official acts not only of the duly elected representatives of the people but also of the highest magistrate of the land. In Younger v. Harris, Jr.,30 the Supreme Court of the United States emphasized, thus: Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. 752 Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577. And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that: "It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith " 319 U.S., at 164, 63 S.Ct., at 881.31

The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction against good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.32 The "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored.33 To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be unconstitutional, the party must establish that it will suffer irreparable harm in the absence of injunctive relief and must demonstrate that it is likely to succeed on the merits, or that there are sufficiently serious questions going to the merits and the balance of hardships tips decidedly in its favor. 34 The higher standard reflects judicial deference toward "legislation or regulations developed through presumptively reasoned democratic processes." Moreover, an injunction will alter, rather than maintain, the status quo, or will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits. 35 Considering that injunction is an exercise of equitable relief and authority, in assessing whether to issue a preliminary injunction, the courts must sensitively assess all the equities of the situation, including the public interest. 36 In litigations between governmental and private parties, courts go much further both to give and withhold relief in furtherance of public interest than they are accustomed to go when only private interests are involved. 37 Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to show some substantial hardship.38 The fear or chilling-effect of the assailed penal provisions of the law on the members of the respondent does not by itself justify prohibiting the State from enforcing them against those whom the State believes in good faith to be punishable under the laws: Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution. 39 It must be borne in mind that subject to constitutional limitations, Congress is empowered to define what acts or omissions shall constitute a crime and to prescribe punishments therefor.40 The power is inherent in Congress and is part of the sovereign power of the State to maintain peace and order. Whatever views may be entertained regarding the severity of punishment, whether one believes in its efficiency or its futility, these are peculiarly questions of legislative policy.41 The comparative gravity of crimes and whether their consequences are more or less injurious are matters for the State and Congress itself to determine.42 Specification of penalties involves questions of legislative policy.43 Due process prohibits criminal stability from shifting the burden of proof to the accused, punishing wholly passive conduct, defining crimes in vague or overbroad language and failing to grant fair warning of illegal conduct. 44 Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending. 45 Bills of attainder are legislative acts which inflict punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial.46 Penalizing unlicensed and licensed recruitment agencies and their officers and employees and their relatives employed in government agencies charged with the enforcement of the law for illegal recruitment and imposing life imprisonment for those who commit large scale illegal recruitment is not offensive to the Constitution. The accused may be convicted of illegal recruitment and large scale illegal recruitment only if, after trial, the prosecution is able to prove all the elements of the crime charged.47

The possibility that the officers and employees of the recruitment agencies, which are members of the respondent, and their relatives who are employed in the government agencies charged in the enforcement of the law, would be indicted for illegal recruitment and, if convicted sentenced to life imprisonment for large scale illegal recruitment, absent proof of irreparable injury, is not sufficient on which to base the issuance of a writ of preliminary injunction to suspend the enforcement of the penal provisions of Rep. Act No. 8042 and avert any indictments under the law. 48 The normal course of criminal prosecutions cannot be blocked on the basis of allegations which amount to speculations about the future.49 There is no allegation in the amended petition or evidence adduced by the respondent that the officers and/or employees of its members had been threatened with any indictments for violations of the penal provisions of Rep. Act No. 8042. Neither is there any allegation therein that any of its members and/or their officers and employees committed any of the acts enumerated in Section 6(a) to (m) of the law for which they could be indicted. Neither did the respondent adduce any evidence in the RTC that any or all of its members or a great number of other duly licensed and registered recruitment agencies had to stop their business operations because of fear of indictments under Sections 6 and 7 of Rep. Act No. 8042. The respondent merely speculated and surmised that licensed and registered recruitment agencies would close shop and stop business operations because of the assailed penal provisions of the law. A writ of preliminary injunction to enjoin the enforcement of penal laws cannot be based on such conjectures or speculations. The Court cannot take judicial notice that the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA because of the assailed provisions of Rep. Act No. 8042. The respondent must adduce evidence to prove its allegation, and the petitioners accorded a chance to adduce controverting evidence. The respondent even failed to adduce any evidence to prove irreparable injury because of the enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension that, because of time constraints, its members would have to defend foreign employees in cases before the Labor Arbiter is based on speculations. Even if true, such inconvenience or difficulty is hardly irreparable injury. The trial court even ignored the public interest involved in suspending the enforcement of Rep. Act No. 8042 vis--vis the eleven licensed and registered recruitment agencies represented by the respondent. In People v. Gamboa,50 we emphasized the primary aim of Rep. Act No. 8042: Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad is one of the primary considerations that led to the enactment of The Migrant Workers and Overseas Filipinos Act of 1995. Aimed at affording greater protection to overseas Filipino workers, it is a significant improvement on existing laws in the recruitment and placement of workers for overseas employment. Otherwise known as the Magna Carta of OFWs, it broadened the concept of illegal recruitment under the Labor Code and provided stiffer penalties thereto, especially those that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale and Illegal Recruitment Committed by a Syndicate.51 By issuing the writ of preliminary injunction against the petitioners sans any evidence, the trial court frustrated, albeit temporarily, the prosecution of illegal recruiters and allowed them to continue victimizing hapless and innocent people desiring to obtain employment abroad as overseas workers, and blocked the attainment of the salutary policies 52 embedded in Rep. Act No. 8042. It bears stressing that overseas workers, land-based and seabased, had been remitting to the Philippines billions of dollars which over the years had propped the economy. In issuing the writ of preliminary injunction, the trial court considered paramount the interests of the eleven licensed and registered recruitment agencies represented by the respondent, and capriciously overturned the presumption of the constitutionality of the assailed provisions on the barefaced claim of the respondent that the assailed provisions of Rep. Act

No. 8042 are unconstitutional. The trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed order and writ of preliminary injunction. It is for this reason that the Court issued a temporary restraining order enjoining the enforcement of the writ of preliminary injunction issued by the trial court. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the appellate court is REVERSED AND SET ASIDE. The Order of the Regional Trial Court dated August 21, 1995 in Civil Case No. Q-95-24401 and the Writ of Preliminary Injunction issued by it in the said case on August 24, 1995 are NULLIFIED. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 118910 November 16, 1995 KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, REP. JOKER P. ARROYO, petitioners, vs. MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office, and the PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents. RESOLUTION

MENDOZA, J.: Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under its charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any form of association or collaboration with any party in operating an on-line lottery. Consequently, petitioners contend, these questions can no longer be reopened. Because two members of the Court did not consider themselves bound by the decision in the first case, petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions in the present case, acted otherwise than according to law. They cite the following statement in the opinion of the Court: The voting on petitioners' standing in the previous case was a narrow one, with seven (7) members sustaining petitioners' standing and six (6) denying petitioners' right to bring the suit. The majority was thus a tenuous one that is not likely to be maintained in any subsequent litigation. In addition, there have been changes in the membership of the Court, with the retirement of Justices Cruz and Bidin and the appointment of the writer of this opinion and Justice Francisco. Given this fact it is hardly

tenable to insist on the maintenance of the ruling as to petitioners' standing. Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian slip, that the two new appointees, regardless of the merit of the Decision in the first Kilosbayan case against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity align themselves with all the Ramos appointees who were dissenters in the first case and constitute the new majority in the second lotto case." And petitioners ask, " why should it be so?" Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis, detecting a Freudian slip where none exists, may be more revealing of their own unexpressed wish to find motives where there are none which they can impute to some members of the Court. For the truth is that the statement is no more than an effort to explain rather than to justify the majority's decision to overrule the ruling in the previous case. It is simply meant to explain that because the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be erroneous and its reexamination not to be barred by stare decisis, res judicata or conclusiveness of judgment, or law of the case, it was hardly tenable for petitioners to insist on the first ruling. Consequently to petitioners' question " What is the glue that holds them together," implying some ulterior motives on the part of the new majority in reexamining the two questions, the answer is: None, except a conviction on the part of the five, who had been members of the Court at the time they dissented in the first case, and the two new members that the previous ruling was erroneous. The eighth Justice (Padilla, J.) on the other hand agrees with the seven Justices that the ELA is in a real sense a lease agreement and therefore does not violate R.A. No. 1169. The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority (Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case was later reversed. It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the Philippine Gaming Management Corporation made a " formal commitment not to ask for a reconsideration of the Decision in the first lotto case and instead submit a new agreement that would be in conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme Court in the first Kilosbayan case against on-line, hi-tech lotto." To be sure, a new contract was entered into which the majority of the Court finds has been purged of the features which made the first contract objectionable. Moreover, what the PCSO said in its manifestation in the first case was the following: 1. They are no longer filing a motion for reconsideration of the Decision of this Honorable Court dated May 5, 1994, a copy of which was received on May 6, 1994.

2. Respondents PCSO and PGMC are presently negotiating a new lease agreement consistent with the authority of PCSO under its charter (R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with the pronouncements of this Honorable Court in its Decision of May 5, 1995. The PGMC made substantially the same manifestation as the PCSO. There was thus no "formal commitment" but only a manifestation that the parties were not filing a motion for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting Justices certainly could not be bound thereby not to insist on their contrary view on the question of standing. Much less were the two new members bound by any "formal commitment" made by the parties. They believed that the ruling in the first case was erroneous. Since in their view reexamination was not barred by the doctrine of stare decisis, res judicata or conclusiveness of judgment or law of the case, they voted the way they did with the remaining five (5) dissenters in the first case to form a new majority of eight. Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was erroneous and no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with equal candor": "Why should this not be so?" Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of change in the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that the phrase "at the time of the election" in 2174 of the Revised Administrative Code of 1917 meant that a candidate for municipal elective position must be at least 23 years of age on the date of the election. On the other hand, the dissenters argued that it was enough if he attained that age on the day he assumed office. Less than three years later, the same question was before the Court again, as a candidate for municipal councilor stated under oath in her certificate of candidacy that she was eligible for that position although she attained the requisite age (23 years) only when she assumed office. The question was whether she could be prosecuted for falsification. In People v. Yang, 107 Phi. 888 (1960), the Court ruled she could not. Justice, later Chief Justice, Benison, who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion of the Court, holding that while the statement that the accused was eligible was "inexact or erroneous, according to the majority in the Feliciano case," the accused could not be held liable for falsification, because the question [whether the law really required candidates to have the required age on the day of the election or whether it was sufficient that they attained it at the beginning of the term of office] has not been discussed anew, despite the presence of new members; we simply assume for the purpose of this decision that the doctrine stands. Thus because in the meantime there had been a change in the membership of the Court with the retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and their replacement by new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the first case was a narrow one (6 to 5), the Court allowed that the continuing validity of its ruling in the first case might well be doubted. For this reason it gave the accused the benefit of the doubt that she had acted in the good faith belief that it was sufficient that she was 23 years of age when she assumed office.

In that case, the change in the membership of the Court and the possibility of change in the ruling were noted without anyone much less would-be psychoanalysts finding in the statement of the Court any Freudian slip. The possibility of change in the rule as a result of change in membership was accepted as a sufficient reason for finding good faith and lack of criminal intent on the part of the accused. Indeed, a change in the composition of the Court could prove the means of undoing an erroneous decision. This was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were passed during the Civil War, made U.S. notes (greenbacks) legal tender for the payment of debts, public or private, with certain exceptions. The validity of the acts, as applied to preexisting debts, was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was then composed of only eight (8) Justices because of Congressional effort to limit the appointing power of President Johnson. Voting 5-3, the Court declared the acts void. Chief Justice Chase wrote the opinion of the Court in which four others, including Justice Grier, concurred. Justices Miller, Swayne and Davis dissented. A private memorandum left by the dissenting Justices described how an effort was made "to convince an aged and infirm member of the court [Justice Grier] that he had not understood the question on which he voted," with the result that what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts invalid. On the day the decision was announced, President Grant nominated to the Court William Strong and Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the membership of the Court to nine. In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases, as Knox v. Lee came to be known, in an opinion by Justice Strong, with a dissenting opinion by Chief Justice Chase and the three other surviving members of the former majority. There were allegations that the new Justices were appointed for their known views on the validity of the Legal Tender Acts, just as there were others who defended the character and independence of the new Justices. History has vindicated the overruling of the Hepburn case by the new majority. The Legal Tender Cases proved to be the Court's means of salvation from what Chief Justice Hughes later described as one of the Court's "self-inflicted wounds." 1 We now consider the specific grounds for petitioners' motion for reconsideration. I. We have held that because there are no genuine issues of constitutionality in this case, the rule concerning real party in interest, applicable to private litigation rather than the more liberal rule on standing, applies to petitioners. Two objections are made against that ruling: (1) that the constitutional policies and principles invoked by petitioners, while not supplying the basis for affirmative relief from the courts, may nonetheless be resorted to for striking down laws or official actions which are inconsistent with them and (2) that the Constitution, by guaranteeing to independent people's organizations "effective and reasonable participation at all levels of social, political and economic decision-making" (Art. XIII, 16), grants them standing to sue on constitutional grounds. The policies and principles of the Constitution invoked by petitioner read: Art. II, 5. The maintenance of peace and order, the protection life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Id., 12. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Id., 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Id., 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. As already stated, however, these provisions are not self-executing. They do not confer rights which can be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding of lottery for charity, Congress has in effect determined that consistently with these policies and principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegal per se. . . . It is left to Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, 268 [1994]). It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the contract entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not raise issues of constitutionality but only of contract law, which petitioners, not being privies to the agreement, cannot raise. Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the validity of the contract in this case. The Constitution provides that "the State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means," that their right to "effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, 15-16) These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decisionmaking in the courts from decision-making in the political departments of the government and bars the bringing of suits by just any party. Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional Commission, explaining the provisions on independent people's organizations. There is nothing in the speech, however, which supports their claim of standing. On the contrary, the speech points the way to the legislative and executive branches of the government, rather than to the courts, as the appropriate fora for the advocacy of petitioners' views. 2 Indeed, the provisions on independent people's organizations may most usefully be read in connection with the provision on initiative and referendum as a means whereby the people may propose or enact laws or reject any of those passed by Congress. For the fact is that

petitioners' opposition to the contract in question is nothing more than an opposition to the government policy on lotteries. It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and legislators have indeed been allowed to sue but then only (1) in cases involving constitutional issues and (2) under certain conditions. Petitioners do not meet these requirements on standing. Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds. (Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of Finance], 235 SCRA 630 [1994]) Voters are allowed to question the validity of election laws because of their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the constitutional question they raise is of "transcendental importance" which must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to question the validity of any official action which they claim infringes their prerogatives qua legislators. (Philconsa v. Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995 (Mendoza, J., concurring)) Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an interest as taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec, 95 SCRA 392, 403 (1980), to wit: While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. (Emphasis added) Petitioners' suit does not fall under any of these categories of taxpayers' suits. Neither do the other cases cited by petitioners support their contention that taxpayers have standing to question government contracts regardless of whether public funds are involved or not. In Gonzales v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment of a contract

between the NHC and a foreign corporation. The case was dismissed by the trial court. The dismissal was affirmed by this Court on the grounds of res judicata and pendency of a prejudicial question, thus avoiding the question of petitioner's standing. On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a contract made by the government with a foreign corporation for the purchase of road construction equipment. The question of standing was not discussed, but even if it was, petitioner's standing could be sustained because he was a minority stockholder of the Philippine National Bank, which was one of the defendants in the case. In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972), members of the city council were allowed to sue to question the validity of a contract entered into by the city government for the purchase of road construction equipment because their contention was that the contract had been made without their authority. In addition, as taxpayers they had an interest in seeing to it that public funds were spent pursuant to an appropriation made by law. But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated. The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds raised from contributions for the benefit of the Cultural Center of the Philippines were not public funds and petitioner had no standing to bring a taxpayer's suit to question their disbursement by the President of the Philippines. Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can they bring this suit because no specific injury suffered by them is alleged. As for the petitioners, who are members of Congress, their right to sue as legislators cannot be invoked because they do not complain of any infringement of their rights as legislators. Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning another form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a "citizen, lawyer, taxpayer and father of three minor children," had no direct and personal interest in the lottery. We said: "He must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute complained of. " In the case at bar, petitioners have not shown why, unlike petitioner in the Valmonte case, they should be accorded standing to bring this suit. The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit seeking the cancellation of timber licenses was sustained in that case because the Court considered Art. II, 16 a right-conferring provision which can be enforced in the courts. That provision states: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (Emphasis) In contrast, the policies and principles invoked by petitioners in this case do not permit of such categorization. Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries which they regard to be immoral.

This is not, however, a legal issue, but a policy matter for Congress to decide and Congress has permitted lotteries for charity. Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped there and dismissed their case. For in the view we take, whether a party has a cause of action and, therefore, is a real party in interest or one with standing to raise a constitutional question must turn on whether he has a right which has been violated. For this reason the Court has not ducked the substantive issues raised by petitioners. II. R.A. No. 1169, as amended by B.P No . 42, states: 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-related investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That such investments will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority. Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity sweepstakes, lotteries and other similar activities in collaboration, association or joint venture with any other party because of the clause "except for the activities mentioned in the preceding paragraph (A)" in paragraph (B) of 1. Petitioners contend that the ruling is the law of this case because the parties are the same and the case involves the same issue, i.e., the meaning of this statutory provision.

The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one. Petitioners also say that inquiry into the same question as to the meaning of the statutory provision is barred by the doctrine of res judicata. The general rule on the "conclusiveness of judgment," however, is subject to the e xception that a question may be reopened if it is a legal question and the two actions involve substantially different claims. This is generally accepted in American law from which our Rules of Court was adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, 28; P. BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case to suggest that this exception is inapplicable in this jurisdiction. Indeed, the questions raised in this case are legal questions and the claims involved are substantially different from those involved in the prior case between the parties. As already stated, the ELA is substantially different from the Contract of Lease declared void in the first case. Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or in collaboration, association or joint venture with any other party" qualifies not only 1 (B) but also 1 (A), because the exception clause ("except for the activities mentioned in the preceding paragraph [A]") "operates, as it were, as a renvoi clause which refers back to Section 1(A) and in this manner avoids the necessity of simultaneously amending the text of Section 1(A)." This interpretation, however, fails to take into account not only the location of the phrase in paragraph (B), when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also the phrase "by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . . . investments, programs, projects and activities" if these involve sweepstakes races, lotteries and other similar activities not only "in collaboration, association or joint venture" with any other party but also "by itself." Obviously, this prohibition cannot apply when the PCSO conducts these activities itself. Otherwise, what paragraph (A) authorizes the PCSO to do, paragraph (B) would prohibit. The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A), but rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42 was intended to enable the PCSO to engage in certain investments, programs, projects and activities for the purpose of raising funds for health programs and charity. That is why the law provides that such investments by the PCSO should "not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority." Justice Davide, then an Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill they were discussing concerned the authority of the PCSO to invest in the business of others. The following excerpt from the Record of the Batasan Pambansa shows this to be the subject of the discussion: MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the amendment is not to leave the determination of whether it is adequate or not to anybody. And my amendment is to add after "adequate" the words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these areas, provided that the determination of whether the private sector's activity is already adequate must be determined by the National Economic and Development Authority.

Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment. MR. DAVIDE. Thank you, Mr. Speaker. (2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979, p. 1007) Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes races, lotteries and other similar activities. It is prohibited from doing so whether "in collaboration, association or joint venture " with others or "by itself." This seems to be the only possible interpretation of 1 (A) and (B) in light of its text and its legislative history. That there is today no other entity engaged in sweepstakes races, lotteries and the like does not detract from the validity of this interpretation. III. The Court noted in its decision that the provisions of the first contract, which were considered to be features of a joint venture agreement, had been removed in the new contract. For instance, 5 of the ELA provides that in the operation of the on-line lottery, the PCSO must employ "its own competent and qualified personnel." Petitioners claim, however, that the "contemporaneous interpretation" of PGMC officials of this provision is otherwise. They cite the testimony of Glen Barroga of the PGMC before a Senate committee to the effect that under the ELA the PGMC would be operating the lottery system "side by side" with PCSO personnel as part of the transfer of technology. Whether the transfer of technology would result in a violation of PCSO's franchise should be determined by facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to the contrary, it must be presumed that 5 reflects the true intention of the parties. Thus, Art. 1370 of the Civil Code says that "If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control." The intention of the parties must be ascertained from their "contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It cannot simply be judged from what one of them says. On the other hand, the claim of third parties, like petitioners, that the clause on upgrading of equipment would enable the parties after a while to change the contract and enter into something else in violation of the law is mere speculation and cannot be a basis for judging the validity of the contract. IV. It is contended that 1 of E.O. No. 301 covers all types of "contract[s] for public services or for furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of equipment, like the ELA, must be submitted to public bidding in order to be valid. This contention is based on two premises: (1) that 1 of E.O. No. 301 applies to any contract whereby the government acquires title to or the use of the equipment and (2) that the words "supplies," "materials," and "equipment" are distinct from each other so that when an exception in 1 speaks of "supplies," it cannot be construed to mean "equipment." Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a), which provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt from public bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy equipment needed for rescue operations in case of a calamity will have to be submitted to public bidding before it can be entered into by the government. In dissent Justice Feliciano says that in such a situation the government can simply resort to expropriation, paying compensation

afterward. This is just like purchasing the equipment through negotiation when the question is whether the purchase should be by public bidding, not to mention the fact that the power to expropriate may not be exercised when the government can very well negotiate with private owners. Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, 1 covers both contracts of sale and lease agreements and (2) that the words "supplies," "materials" and "equipment" can not be interchanged. Thus, under paragraph (b) of 1, public bidding is not required "whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service." Following petitioners' theory, there should be a public bidding before the government can enter into a contract for the lease of bulldozers and dredging equipment even if these are urgently needed in areas ravaged by lahar because, first, lease contracts are covered by the general rule and, second, the exception to public bidding in paragraph (b) covers only "supplies" but not equipment. To take still another example. Paragraph (d), which does away with the requirement of public bidding "whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or nonconforming to specifications." Again, following the theory of the petitioners, a contract for the lease of equipment cannot be entered into even if there are no bids because, first, lease contracts are governed by the general rule on public bidding and, second, the exception to public bidding in paragraph (d) applies only to contracts for the furnishing of "supplies." Other examples can be given to show the absurdity of interpreting 1 as applicable to any contract for the furnishing of supplies, materials and equipment and of considering the words "supplies," "materials" and "equipment" to be not interchangeable. Our ruling that 1 of E.O. No. 301 does not cover the lease of equipment avoids these fundamental difficulties and is supported by the text of 1, which is entitled "Guidelines for Negotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases, namely, 6 and 7, concern the lease of buildings by or to the government. Thus the text of 1 reads: 1. Guidelines for Negotiated Contracts. Any provision of law, decree, executive order or other issuances to the contrary notwithstanding, no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations: a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exhorbitant or non-conforming to specifications;

e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and f. Whenever the purchase is made from an agency of the government. Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as well as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940, required consultation with the Secretary of Justice and the Department Head concerned and the approval of the President of the Philippines before contracts for the furnishing of supplies, materials and equipment could be made on a negotiated basis, without public bidding. E.O. No. 301 changed this by providing as follows: 2. Jurisdiction over Negotiated Contracts. In line with the principles of decentralization and accountability, negotiated contracts for public services or for furnishing supplies, materials or equipment may be entered into by the department or agency head or the governing board of the government-owned or controlled corporation concerned, without need of prior approval by higher authorities, subject to availability of funds, compliance with the standards or guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the commission on Audit in accordance with existing rules and regulations. Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the Secretary and two other Undersecretaries. xxx xxx xxx 7. Jurisdiction Over Lease Contracts. The heads of agency intending to rent privatelyowned buildings or spaces for their use, or to lease out government-owned buildings or spaces for private use, shall have authority to determine the reasonableness of the terms of the lease and the rental rates thereof, and to enter into such lease contracts without need of prior approval by higher authorities, subject to compliance with the uniform standards or guidelines established pursuant to Section 6 hereof by the DPWH and to the audit jurisdiction of COA or its duly authorized representative in accordance with existing rules and regulations. In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was merely to change the system of administrative review of emergency purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in this case. Even if it applies, it does not require public bidding for entering into it.

Our holding that E.O. No. 301, 1 applies only to contracts of purchase and sale is conformable to P.D. No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local governments to hold public bidding in the "procurement of supplies." By specifying "procurement of supplies" and excepting from the general rule "purchases" when made under certain circumstances, P.D. No. 526, 12 indicates quite clearly that it applies only to contracts of purchase and sale. This provision reads: 12. Procurement without public bidding. Procurement of supplies may be made without the benefit of public bidding in the following modes: (1) Personal canvass of responsible merchants; (2) Emergency purchases; (3) Direct purchases from manufacturers or exclusive distributors; (4) Thru the Bureau of Supply Coordination; and (5) Purchase from other government entities or foreign governments. Sec. 3 broadly defines the term "supplies" as including everything except real estate, which may be needed in the transaction of public business, or in the pursuit of any undertaking, project, or activity, whether of the nature of equipment, furniture, stationery, materials for construction, or personal property of any sort, including non-personal or contractual services such as the repair and maintenance of equipment and furniture, as well as trucking, hauling, janitorial, security, and related or analogous services. Thus, the texts of both E.O. No. 301, 1 and of P.D. No. 526, 1 and 12, make it clear that only contracts for the purchase and sale of supplies, materials and equipment are contemplated by the rule concerning public biddings. Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of purchase and sale because of "multifarious credit and tax constraints" and therefore could not have been left out from the requirement of public bidding. Obviously these credit and tax constraints can have no attraction to the government when considering the advantages of sale over lease of equipment. The fact that lease contracts are in common use is not a reason for implying that the rule on public bidding applies not only to government purchases but also to lease contracts. For the fact also is that the government leases equipment, such as copying machines, personal computers and the like, without going through public bidding. FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality.SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 115455 August 25, 1994 ARTURO M. TOLENTINO, petitioner, vs. THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, respondents. G.R. No. 115525 August 25, 1994 JUAN T. DAVID, petitioner, vs. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents. G.R. No. 115543 August 25, 1994 RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners, vs. THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents. G.R. No. 115544 August 25, 1994 PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents. G.R. No. 115754 August 25, 1994

G.R. No. 115873 August 25, 1994 COOPERATIVE UNION OF THE PHILIPPINES, petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents. G.R. No. 115931 August 25, 1994 PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE BOOK-SELLERS, petitioners, vs. HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue and HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner of Customs, respondents. Arturo M. Tolentino for and in his behalf. Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No. 115525. Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco. Villaranza and Cruz for petitioners in G.R. No. 115544. Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No. 115754. Salonga, Hernandez & Allado for Freedon From Debts Coalition, Inc. & Phil. Bible Society. Estelito P. Mendoza for petitioner in G.R. No. 115852.

CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner, vs. THE COMMISSIONER OF INTERNAL REVENUE, respondent. G.R. No. 115781 August 25, 1994 KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC., PHILIPPINE BIBLE SOCIETY, INC., and WIGBERTO TAADA, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents. G.R. No. 115852 August 25, 1994 PHILIPPINE AIRLINES, INC., petitioner, vs. THE SECRETARY OF FINANCE, and COMMISSIONER OF INTERNAL REVENUE, respondents.

Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for petitioners in G.R. No. 115873. R.B. Rodriguez & Associates for petitioners in G.R. No. 115931. Reve A.V. Saguisag for MABINI.

MENDOZA, J.: The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. These are various suits for certiorari and prohibition, challenging the constitutionality of Republic Act No. 7716 on various grounds summarized in the resolution of July 6, 1994 of this Court, as follows: I. Procedural Issues:

A. Does Republic Act No. 7716 violate Art. VI, 24 of the Constitution? B. Does it violate Art. VI, 26(2) of the Constitution? C. What is the extent of the power of the Bicameral Conference Committee? II. Substantive Issues: A. Does the law violate the following provisions in the Bill of Rights (Art. III)? 1. 1 2. 4 3. 5 4. 10 B. Does the law violate the following other provisions of the Constitution? 1. Art. VI, 28(1) 2. Art. VI, 28(3) These questions will be dealt in the order they are stated above. As will presently be explained not all of these questions are judicially cognizable, because not all provisions of the Constitution are self executing and, therefore, judicially enforceable. The other departments of the government are equally charged with the enforcement of the Constitution, especially the provisions relating to them. I. PROCEDURAL ISSUES The contention of petitioners is that in enacting Republic Act No. 7716, or the Expanded Value-Added Tax Law, Congress violated the Constitution because, although H. No. 11197 had originated in the House of Representatives, it was not passed by the Senate but was simply consolidated with the Senate version (S. No. 1630) in the Conference Committee to produce the bill which the President signed into law. The following provisions of the Constitution are cited in support of the proposition that because Republic Act No. 7716 was passed in this manner, it did not originate in the House of Representatives and it has not thereby become a law: Art. VI, 24: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. Id., 26(2): No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be

allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. It appears that on various dates between July 22, 1992 and August 31, 1993, several bills 1 were introduced in the House of Representatives seeking to amend certain provisions of the National Internal Revenue Code relative to the value-added tax or VAT. These bills were referred to the House Ways and Means Committee which recommended for approval a substitute measure, H. No. 11197, entitled AN ACT RESTRUCTURING THE VALUEADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED The bill (H. No. 11197) was considered on second reading starting November 6, 1993 and, on November 17, 1993, it was approved by the House of Representatives after third and final reading. It was sent to the Senate on November 23, 1993 and later referred by that body to its Committee on Ways and Means. On February 7, 1994, the Senate Committee submitted its report recommending approval of S. No. 1630, entitled AN ACT RESTRUCTURING THE VALUEADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 107, 108, AND 110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114 and 116 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES It was stated that the bill was being submitted "in substitution of Senate Bill No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197." On February 8, 1994, the Senate began consideration of the bill (S. No. 1630). It finished debates on the bill and approved it on second reading on March 24, 1994. On the same day, it approved the bill on third reading by the affirmative votes of 13 of its members, with one abstention. H. No. 11197 and its Senate version (S. No. 1630) were then referred to a conference committee which, after meeting four times (April 13, 19, 21 and 25, 1994), recommended that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees." The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES," was thereafter approved by the House

of Representatives on April 27, 1994 and by the Senate on May 2, 1994. The enrolled bill was then presented to the President of the Philippines who, on May 5, 1994, signed it. It became Republic Act No. 7716. On May 12, 1994, Republic Act No. 7716 was published in two newspapers of general circulation and, on May 28, 1994, it took effect, although its implementation was suspended until June 30, 1994 to allow time for the registration of business entities. It would have been enforced on July 1, 1994 but its enforcement was stopped because the Court, by the vote of 11 to 4 of its members, granted a temporary restraining order on June 30, 1994. First. Petitioners' contention is that Republic Act No. 7716 did not "originate exclusively" in the House of Representatives as required by Art. VI, 24 of the Constitution, because it is in fact the result of the consolidation of two distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners point out that although Art. VI, SS 24 was adopted from the American Federal Constitution, 2 it is notable in two respects: the verb "shall originate" is qualified in the Philippine Constitution by the word "exclusively" and the phrase "as on other bills" in the American version is omitted. This means, according to them, that to be considered as having originated in the House, Republic Act No. 7716 must retain the essence of H. No. 11197. This argument will not bear analysis. To begin with, it is not the law but the revenue bill which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to "propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. The contention that the constitutional design is to limit the Senate's power in respect of revenue bills in order to compensate for the grant to the Senate of the treaty-ratifying power 3 and thereby equalize its powers and those of the House overlooks the fact that the powers being compared are different. We are dealing here with the legislative power which under the Constitution is vested not in any particular chamber but in the Congress of the Philippines, consisting of "a Senate and a House of Representatives." 4 The exercise of the treaty-ratifying power is not the exercise of legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification for comparing the legislative powers of the House and of the Senate on the basis of the possession of such nonlegislative power by the Senate. The possession of a similar power by the U.S. Senate 5 has never been thought of as giving it more legislative powers than the House of Representatives. In the United States, the validity of a provision ( 37) imposing an ad valorem tax based on the weight of vessels, which the U.S. Senate had inserted in the Tariff Act of 1909, was upheld against the claim that the provision was a revenue bill which originated in the Senate in contravention of Art. I, 7 of the U.S. Constitution. 6 Nor is the power to amend limited to adding a provision or two in a revenue bill emanating from the House. The U.S. Senate has gone so far as changing the whole of bills following the enacting clause and substituting its own versions. In 1883, for example, it struck out everything after the enacting clause of a tariff bill and wrote in its place its own measure, and the House subsequently accepted the amendment. The U.S. Senate likewise added 847 amendments to what later became the Payne-Aldrich Tariff Act of 1909; it dictated the schedules of the Tariff Act of 1921; it rewrote an extensive tax revision bill in the same year and recast most of the tariff bill of 1922. 7 Given, then, the power of the Senate to propose amendments, the Senate can propose its own version even with

respect to bills which are required by the Constitution to originate in the House. It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject. Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. The Court cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before the House passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the Senate ever considered it. It was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of legislation in respect of it began with the referral to the Senate Committee on Ways and Means of H. No. 11197 and the submission by the Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply the priority in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT law was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129 was filed in the Senate, and H. No. 11197 was only a substitute of those earlier bills. Second. Enough has been said to show that it was within the power of the Senate to propose S. No. 1630. We now pass to the next argument of petitioners that S. No. 1630 did not pass three readings on separate days as required by the Constitution 8 because the second and third readings were done on the same day, March 24, 1994. But this was because on February 24, 1994 9 and again on March 22, 1994, 10 the President had certified S. No. 1630 as urgent. The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, 26(2) qualifies the two stated conditions before a bill can become a law: (i) the bill has passed three readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally approved. In other words, the "unless" clause must be read in relation to the "except" clause, because the two are really coordinate clauses of the same sentence. To construe the "except" clause as simply dispensing with the second requirement in the "unless" clause ( i.e., printing and distribution three days before final approval) would not only violate the rules of grammar. It would also negate the very premise of the "except" clause: the necessity of securing the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any use in insuring immediate enactment. It may well be doubted whether doing away with the necessity of printing and distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face of an

emergency requiring the calling of a special election for President and Vice-President. Under the Constitution such a law is required to be made within seven days of the convening of Congress in emergency session. 11 That upon the certification of a bill by the President the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day (May 14, 1968) after the bill had been certified by the President as urgent. 12 There is, therefore, no merit in the contention that presidential certification dispenses only with the requirement for the printing of the bill and its distribution three days before its passage but not with the requirement of three readings on separate days, also. It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency, the condition stated in the certification of a "growing budget deficit" not being an unusual condition in this country. It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate accepted the President's certification. Should such certification be now reviewed by this Court, especially when no evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the members of the Senate were deprived of the time needed for the study of a vital piece of legislation? The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, 23(2), is subject to judicial review because basic rights of individuals may be at hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. Petitioners also invite attention to the fact that the President certified S. No. 1630 and not H. No. 11197. That is because S. No. 1630 was what the Senate was considering. When the matter was before the House, the President likewise certified H. No. 9210 the pending in the House. Third. Finally it is contended that the bill which became Republic Act No. 7716 is the bill which the Conference Committee prepared by consolidating H. No. 11197 and S. No. 1630. It is claimed that the Conference Committee report included provisions not found in either the House bill or the Senate bill and that these provisions were "surreptitiously" inserted by the Conference Committee. Much is made of the fact that in the last two days of its session on April 21 and 25, 1994 the Committee met behind closed doors. We are not told, however, whether the provisions were not the result of the give and take that often mark the proceedings of conference committees. Nor is there anything unusual or extraordinary about the fact that the Conference Committee met in executive sessions. Often the only way to reach agreement on conflicting provisions is to meet behind closed doors, with only the conferees present. Otherwise, no compromise is likely to be made. The Court is not about to take the suggestion of a cabal or sinister motive attributed to the conferees on the basis solely of their "secret meetings" on April 21 and 25, 1994, nor read anything into the incomplete remarks of the members, marked in the transcript of stenographic notes by ellipses. The incomplete sentences are probably due to the stenographer's

own limitations or to the incoherence that sometimes characterize conversations. William Safire noted some such lapses in recorded talks even by recent past Presidents of the United States. In any event, in the United States conference committees had been customarily held in executive sessions with only the conferees and their staffs in attendance. 13 Only in November 1975 was a new rule adopted requiring open sessions. Even then a majority of either chamber's conferees may vote in public to close the meetings. 14 As to the possibility of an entirely new bill emerging out of a Conference Committee, it has been explained: Under congressional rules of procedure, conference committees are not expected to make any material change in the measure at issue, either by deleting provisions to which both houses have already agreed or by inserting new provisions. But this is a difficult provision to enforce. Note the problem when one house amends a proposal originating in either house by striking out everything following the enacting clause and substituting provisions which make it an entirely new bill. The versions are now altogether different, permitting a conference committee to draft essentially a new bill. . . . 15 The result is a third version, which is considered an "amendment in the nature of a substitute," the only requirement for which being that the third version be germane to the subject of the House and Senate bills. 16 Indeed, this Court recently held that it is within the power of a conference committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. 17 If the committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions, collectively considered as an "amendment in the nature of a substitute," so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not final but needed the approval of both houses of Congress to become valid as an act of the legislative department. The charge that in this case the Conference Committee acted as a third legislative chamber is thus without any basis. 18 Nonetheless, it is argued that under the respective Rules of the Senate and the House of Representatives a conference committee can only act on the differing provisions of a Senate bill and a House bill, and that contrary to these Rules the Conference Committee inserted provisions not found in the bills submitted to it. The following provisions are cited in support of this contention: Rules of the Senate Rule XII: 26. In the event that the Senate does not agree with the House of Representatives on the provision of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses which shall meet within ten days after their composition. The President shall designate the members of the conference committee in accordance with subparagraph (c), Section 3 of Rule III.

Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the changes in or amendments to the subject measure, and shall be signed by the conferees. The consideration of such report shall not be in order unless the report has been filed with the Secretary of the Senate and copies thereof have been distributed to the Members. (Emphasis added) Rules of the House of Representatives Rule XIV: 85. Conference Committee Reports. In the event that the House does not agree with the Senate on the amendments to any bill or joint resolution, the differences may be settled by conference committees of both Chambers. The consideration of conference committee reports shall always be in order, except when the journal is being read, while the roll is being called or the House is dividing on any question. Each of the pages of such reports shall be signed by the conferees. Each report shall contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure. The consideration of such report shall not be in order unless copies thereof are distributed to the Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient that three copies of the report, signed as above provided, are deposited in the office of the Secretary General. (Emphasis added) To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting provisions. But Rule XLIV, 112 of the Rules of the Senate is cited to the effect that "If there is no Rule applicable to a specific case the precedents of the Legislative Department of the Philippines shall be resorted to, and as a supplement of these, the Rules contained in Jefferson's Manual." The following is then quoted from the Jefferson's Manual: The managers of a conference must confine themselves to the differences committed to them. . . and may not include subjects not within disagreements, even though germane to a question in issue. Note that, according to Rule XLIX, 112, in case there is no specific rule applicable, resort must be to the legislative practice. The Jefferson's Manual is resorted to only as supplement. It is common place in Congress that conference committee reports include new matters which, though germane, have not been committed to the committee. This practice was admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral argument in these cases. Whatever, then, may be provided in the Jefferson's Manual must be considered to have been modified by the legislative practice. If a change is desired in the practice it must be sought in Congress since this question is not covered by any constitutional provision but is only an internal rule of each house. Thus, Art. VI,

16(3) of the Constitution provides that "Each House may determine the rules of its proceedings. . . ." This observation applies to the other contention that the Rules of the two chambers were likewise disregarded in the preparation of the Conference Committee Report because the Report did not contain a "detailed and sufficiently explicit statement of changes in, or amendments to, the subject measure." The Report used brackets and capital letters to indicate the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks and symbols the Committee violated the Rules of the Senate and the House. Moreover, this Court is not the proper forum for the enforcement of these internal Rules. To the contrary, as we have already ruled, "parliamentary rules are merely procedural and with their observance the courts have no concern." 19 Our concern is with the procedural requirements of the Constitution for the enactment of laws. As far as these requirements are concerned, we are satisfied that they have been faithfully observed in these cases. Nor is there any reason for requiring that the Committee's Report in these cases must have undergone three readings in each of the two houses. If that be the case, there would be no end to negotiation since each house may seek modifications of the compromise bill. The nature of the bill, therefore, requires that it be acted upon by each house on a "take it or leave it" basis, with the only alternative that if it is not approved by both houses, another conference committee must be appointed. But then again the result would still be a compromise measure that may not be wholly satisfying to both houses. Art. VI, 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either house of Congress, not to the conference committee report. For if the purpose of requiring three readings is to give members of Congress time to study bills, it cannot be gainsaid that H. No. 11197 was passed in the House after three readings; that in the Senate it was considered on first reading and then referred to a committee of that body; that although the Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it had prepared by "taking into consideration" the House bill; that for its part the Conference Committee consolidated the two bills and prepared a compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate, presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee usurped the legislative power of Congress is, in our view, without warrant in fact and in law. Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases 20 manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but also of its due enactment. Not even claims that a proposed constitutional amendment was invalid because the requisite votes for its approval had not been obtained 21 or that certain provisions of a statute had been "smuggled" in the printing of the bill 22 have moved or persuaded us to look behind the proceedings of a coequal branch of the government. There is no reason now to depart from this rule. No claim is here made that the "enrolled bill" rule is absolute. In fact in one case 23 we "went behind" an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate in view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and withdrew his signature, so that in effect there was no longer an enrolled bill to consider. But where allegations that the constitutional procedures for the passage of bills have not been observed have no more basis than another allegation that the Conference Committee "surreptitiously" inserted provisions into a bill which it had prepared, we should

decline the invitation to go behind the enrolled copy of the bill. To disregard the "enrolled bill" rule in such cases would be to disregard the respect due the other two departments of our government. Fifth. An additional attack on the formal validity of Republic Act No. 7716 is made by the Philippine Airlines, Inc., petitioner in G.R. No. 11582, namely, that it violates Art. VI, 26(1) which provides that "Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof." It is contended that neither H. No. 11197 nor S. No. 1630 provided for removal of exemption of PAL transactions from the payment of the VAT and that this was made only in the Conference Committee bill which became Republic Act No. 7716 without reflecting this fact in its title. The title of Republic Act No. 7716 is: AN ACT RESTRUCTURING THE VALUEADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES. Among the provisions of the NIRC amended is 103, which originally read: 103. Exempt transactions. The following shall be exempt from the value-added tax: .... (q) Transactions which are exempt under special laws or international agreements to which the Philippines is a signatory. Among the transactions exempted from the VAT were those of PAL because it was exempted under its franchise (P.D. No. 1590) from the payment of all "other taxes . . . now or in the near future," in consideration of the payment by it either of the corporate income tax or a franchise tax of 2%. As a result of its amendment by Republic Act No. 7716, 103 of the NIRC now provides: 103. Exempt transactions. The following shall be exempt from the value-added tax: .... (q) Transactions which are exempt under special laws, except those granted under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . . The effect of the amendment is to remove the exemption granted to PAL, as far as the VAT is concerned. The question is whether this amendment of 103 of the NIRC is fairly embraced in the title of Republic Act No. 7716, although no mention is made therein of P.D. No. 1590 as among those which the statute amends. We think it is, since the title states that the purpose of the statute is to expand the VAT system, and one way of doing this is to widen its base by withdrawing some of the exemptions granted before. To insist that P.D. No. 1590 be mentioned in the title of the law, in addition to 103 of the NIRC, in which it is specifically

referred to, would be to insist that the title of a bill should be a complete index of its content. The constitutional requirement that every bill passed by Congress shall embrace only one subject which shall be expressed in its title is intended to prevent surprise upon the members of Congress and to inform the people of pending legislation so that, if they wish to, they can be heard regarding it. If, in the case at bar, petitioner did not know before that its exemption had been withdrawn, it is not because of any defect in the title but perhaps for the same reason other statutes, although published, pass unnoticed until some event somehow calls attention to their existence. Indeed, the title of Republic Act No. 7716 is not any more general than the title of PAL's own franchise under P.D. No. 1590, and yet no mention is made of its tax exemption. The title of P.D. No. 1590 is: AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC. TO ESTABLISH, OPERATE, AND MAINTAIN AIR-TRANSPORT SERVICES IN THE PHILIPPINES AND BETWEEN THE PHILIPPINES AND OTHER COUNTRIES. The trend in our cases is to construe the constitutional requirement in such a manner that courts do not unduly interfere with the enactment of necessary legislation and to consider it sufficient if the title expresses the general subject of the statute and all its provisions are germane to the general subject thus expressed. 24 It is further contended that amendment of petitioner's franchise may only be made by special law, in view of 24 of P.D. No. 1590 which provides: This franchise, as amended, or any section or provision hereof may only be modified, amended, or repealed expressly by a special law or decree that shall specifically modify, amend, or repeal this franchise or any section or provision thereof. This provision is evidently intended to prevent the amendment of the franchise by mere implication resulting from the enactment of a later inconsistent statute, in consideration of the fact that a franchise is a contract which can be altered only by consent of the parties. Thus in Manila Railroad Co. v. Rafferty, 25 it was held that an Act of the U.S. Congress, which provided for the payment of tax on certain goods and articles imported into the Philippines, did not amend the franchise of plaintiff, which exempted it from all taxes except those mentioned in its franchise. It was held that a special law cannot be amended by a general law. In contrast, in the case at bar, Republic Act No. 7716 expressly amends PAL's franchise (P.D. No. 1590) by specifically excepting from the grant of exemptions from the VAT PAL's exemption under P.D. No. 1590. This is within the power of Congress to do under Art. XII, 11 of the Constitution, which provides that the grant of a franchise for the operation of a public utility is subject to amendment, alteration or repeal by Congress when the common good so requires. II. SUBSTANTIVE ISSUES A. Claims of Press Freedom, Freedom of Thought and Religious Freedom The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a nonprofit organization of newspaper publishers established for the improvement of journalism in the Philippines. On the other hand, petitioner in G.R. No. 115781, the Philippine Bible Society (PBS), is

a nonprofit organization engaged in the printing and distribution of bibles and other religious articles. Both petitioners claim violations of their rights under 4 and 5 of the Bill of Rights as a result of the enactment of the VAT Law. The PPI questions the law insofar as it has withdrawn the exemption previously granted to the press under 103 (f) of the NIRC. Although the exemption was subsequently restored by administrative regulation with respect to the circulation income of newspapers, the PPI presses its claim because of the possibility that the exemption may still be removed by mere revocation of the regulation of the Secretary of Finance. On the other hand, the PBS goes so far as to question the Secretary's power to grant exemption for two reasons: (1) The Secretary of Finance has no power to grant tax exemption because this is vested in Congress and requires for its exercise the vote of a majority of all its members 26 and (2) the Secretary's duty is to execute the law. 103 of the NIRC contains a list of transactions exempted from VAT. Among the transactions previously granted exemption were: (f) Printing, publication, importation or sale of books and any newspaper, magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is devoted principally to the publication of advertisements. Republic Act No. 7716 amended 103 by deleting (f) with the result that print media became subject to the VAT with respect to all aspects of their operations. Later, however, based on a memorandum of the Secretary of Justice, respondent Secretary of Finance issued Revenue Regulations No. 11-94, dated June 27, 1994, exempting the "circulation income of print media pursuant to 4 Article III of the 1987 Philippine Constitution guaranteeing against abridgment of freedom of the press, among others." The exemption of "circulation income" has left income from advertisements still subject to the VAT. It is unnecessary to pass upon the contention that the exemption granted is beyond the authority of the Secretary of Finance to give, in view of PPI's contention that even with the exemption of the circulation revenue of print media there is still an unconstitutional abridgment of press freedom because of the imposition of the VAT on the gross receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication. Even on the assumption that no exemption has effectively been granted to print media transactions, we find no violation of press freedom in these cases. To be sure, we are not dealing here with a statute that on its face operates in the area of press freedom. The PPI's claim is simply that, as applied to newspapers, the law abridges press freedom. Even with due recognition of its high estate and its importance in a democratic society, however, the press is not immune from general regulation by the State. It has been held: The publisher of a newspaper has no immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. . . . Like others, he must pay equitable and nondiscriminatory taxes on his business. . . . 27 The PPI does not dispute this point, either. What it contends is that by withdrawing the exemption previously granted to print media transactions involving printing, publication, importation or sale of newspapers, Republic Act No. 7716 has

singled out the press for discriminatory treatment and that within the class of mass media the law discriminates against print media by giving broadcast media favored treatment. We have carefully examined this argument, but we are unable to find a differential treatment of the press by the law, much less any censorial motivation for its enactment. If the press is now required to pay a value-added tax on its transactions, it is not because it is being singled out, much less targeted, for special treatment but only because of the removal of the exemption previously granted to it by law. The withdrawal of exemption is all that is involved in these cases. Other transactions, likewise previously granted exemption, have been delisted as part of the scheme to expand the base and the scope of the VAT system. The law would perhaps be open to the charge of discriminatory treatment if the only privilege withdrawn had been that granted to the press. But that is not the case. The situation in the case at bar is indeed a far cry from those cited by the PPI in support of its claim that Republic Act No. 7716 subjects the press to discriminatory taxation. In the cases cited, the discriminatory purpose was clear either from the background of the law or from its operation. For example, in Grosjean v. American Press Co., 28 the law imposed a license tax equivalent to 2% of the gross receipts derived from advertisements only on newspapers which had a circulation of more than 20,000 copies per week. Because the tax was not based on the volume of advertisement alone but was measured by the extent of its circulation as well, the law applied only to the thirteen large newspapers in Louisiana, leaving untaxed four papers with circulation of only slightly less than 20,000 copies a week and 120 weekly newspapers which were in serious competition with the thirteen newspapers in question. It was well known that the thirteen newspapers had been critical of Senator Huey Long, and the Long-dominated legislature of Louisiana respondent by taxing what Long described as the "lying newspapers" by imposing on them "a tax on lying." The effect of the tax was to curtail both their revenue and their circulation. As the U.S. Supreme Court noted, the tax was "a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties." 29 The case is a classic illustration of the warning that the power to tax is the power to destroy. In the other case 30 invoked by the PPI, the press was also found to have been singled out because everything was exempt from the "use tax" on ink and paper, except the press. Minnesota imposed a tax on the sales of goods in that state. To protect the sales tax, it enacted a complementary tax on the privilege of "using, storing or consuming in that state tangible personal property" by eliminating the residents' incentive to get goods from outside states where the sales tax might be lower. The Minnesota Star Tribune was exempted from both taxes from 1967 to 1971. In 1971, however, the state legislature amended the tax scheme by imposing the "use tax" on the cost of paper and ink used for publication. The law was held to have singled out the press because (1) there was no reason for imposing the "use tax" since the press was exempt from the sales tax and (2) the "use tax" was laid on an "intermediate transaction rather than the ultimate retail sale." Minnesota had a heavy burden of justifying the differential treatment and it failed to do so. In addition, the U.S. Supreme Court found the law to be discriminatory because the legislature, by again amending the law so as to exempt the first $100,000 of paper and ink used, further narrowed the coverage of the tax so that "only a handful of publishers pay any tax at all and even fewer pay any significant amount of tax." 31 The discriminatory purpose was thus very clear. More recently, in Arkansas Writers' Project, Inc. v. Ragland , 32 it was held that a law which taxed general interest magazines but not newspapers and religious, professional, trade and sports journals was discriminatory because while the tax did not single out the press as a whole, it targeted a small group within the press. What is more, by differentiating on the basis of contents ( i.e., between general interest and special interests such as religion or sports) the law became "entirely incompatible with the First Amendment's guarantee of freedom of the press."

These cases come down to this: that unless justified, the differential treatment of the press creates risks of suppression of expression. In contrast, in the cases at bar, the statute applies to a wide range of goods and services. The argument that, by imposing the VAT only on print media whose gross sales exceeds P480,000 but not more than P750,000, the law discriminates 33 is without merit since it has not been shown that as a result the class subject to tax has been unreasonably narrowed. The fact is that this limitation does not apply to the press along but to all sales. Nor is impermissible motive shown by the fact that print media and broadcast media are treated differently. The press is taxed on its transactions involving printing and publication, which are different from the transactions of broadcast media. There is thus a reasonable basis for the classification. The cases canvassed, it must be stressed, eschew any suggestion that "owners of newspapers are immune from any forms of ordinary taxation." The license tax in the Grosjean case was declared invalid because it was "one single in kind, with a long history of hostile misuse against the freedom of the press." 34 On the other hand, Minneapolis Star acknowledged that "The First Amendment does not prohibit all regulation of the press [and that] the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems." 35 What has been said above also disposes of the allegations of the PBS that the removal of the exemption of printing, publication or importation of books and religious articles, as well as their printing and publication, likewise violates freedom of thought and of conscience. For as the U.S. Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization , 36 the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization. This brings us to the question whether the registration provision of the law, 37 although of general applicability, nonetheless is invalid when applied to the press because it lays a prior restraint on its essential freedom. The case of American Bible Society v. City of Manila 38 is cited by both the PBS and the PPI in support of their contention that the law imposes censorship. There, this Court held that an ordinance of the City of Manila, which imposed a license fee on those engaged in the business of general merchandise, could not be applied to the appellant's sale of bibles and other religious literature. This Court relied on Murdock v. Pennsylvania, 39 in which it was held that, as a license fee is fixed in amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, was actually being imposed as a condition for the exercise of the sect's right under the Constitution. For that reason, it was held, the license fee "restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise." 40 But, in this case, the fee in 107, although a fixed amount (P1,000), is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost of registration. The registration requirement is a central feature of the VAT system. It is designed to provide a record of tax credits because any person who is subject to the payment of the VAT pays an input tax, even as he collects an output tax on sales made or services rendered. The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right. For the foregoing reasons, we find the attack on Republic Act No. 7716 on the ground that it offends the free speech, press and freedom of religion guarantees of the Constitution to be without merit. For the same reasons, we find the claim of the Philippine Educational Publishers Association (PEPA) in G.R. No. 115931 that the increase in the price of books and other educational materials as a result of the VAT would violate the constitutional mandate to the

government to give priority to education, science and technology (Art. II, 17) to be untenable. B. Claims of Regressivity, Denial of Due Process, Equal Protection, and Impairment of Contracts There is basis for passing upon claims that on its face the statute violates the guarantees of freedom of speech, press and religion. The possible "chilling effect" which it may have on the essential freedom of the mind and conscience and the need to assure that the channels of communication are open and operating importunately demand the exercise of this Court's power of review. There is, however, no justification for passing upon the claims that the law also violates the rule that taxation must be progressive and that it denies petitioners' right to due process and that equal protection of the laws. The reason for this different treatment has been cogently stated by an eminent authority on constitutional law thus: "[W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled it is the lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause." 41 Indeed, the absence of threat of immediate harm makes the need for judicial intervention less evident and underscores the essential nature of petitioners' attack on the law on the grounds of regressivity, denial of due process and equal protection and impairment of contracts as a mere academic discussion of the merits of the law. For the fact is that there have even been no notices of assessments issued to petitioners and no determinations at the administrative levels of their claims so as to illuminate the actual operation of the law and enable us to reach sound judgment regarding so fundamental questions as those raised in these suits. Thus, the broad argument against the VAT is that it is regressive and that it violates the requirement that "The rule of taxation shall be uniform and equitable [and] Congress shall evolve a progressive system of taxation." 42 Petitioners in G.R. No. 115781 quote from a paper, entitled "VAT Policy Issues: Structure, Regressivity, Inflation and Exports" by Alan A. Tait of the International Monetary Fund, that "VAT payment by low-income households will be a higher proportion of their incomes (and expenditures) than payments by higherincome households. That is, the VAT will be regressive." Petitioners contend that as a result of the uniform 10% VAT, the tax on consumption goods of those who are in the higher-income bracket, which before were taxed at a rate higher than 10%, has been reduced, while basic commodities, which before were taxed at rates ranging from 3% to 5%, are now taxed at a higher rate. Just as vigorously as it is asserted that the law is regressive, the opposite claim is pressed by respondents that in fact it distributes the tax burden to as many goods and services as possible particularly to those which are within the reach of higher-income groups, even as the law exempts basic goods and services. It is thus equitable. The goods and properties subject to the VAT are those used or consumed by higher-income groups. These include real properties held primarily for sale to customers or held for lease in the ordinary course of business, the right or privilege to use industrial, commercial or scientific equipment, hotels, restaurants and similar places, tourist buses, and the like. On the other hand, small business establishments, with annual gross sales of less than P500,000, are exempted. This, according to respondents, removes from the coverage of the law some 30,000 business establishments. On the other hand, an occasional paper 43 of the Center for Research and Communication cities a NEDA study that the VAT has minimal impact on inflation and income distribution and that while additional expenditure for the lowest income class is only P301 or 1.49% a year, that for a family earning P500,000 a year or more is P8,340 or 2.2%.

Lacking empirical data on which to base any conclusion regarding these arguments, any discussion whether the VAT is regressive in the sense that it will hit the "poor" and middle-income group in society harder than it will the "rich," as the Cooperative Union of the Philippines (CUP) claims in G.R. No. 115873, is largely an academic exercise. On the other hand, the CUP's contention that Congress' withdrawal of exemption of producers cooperatives, marketing cooperatives, and service cooperatives, while maintaining that granted to electric cooperatives, not only goes against the constitutional policy to promote cooperatives as instruments of social justice (Art. XII, 15) but also denies such cooperatives the equal protection of the law is actually a policy argument. The legislature is not required to adhere to a policy of "all or none" in choosing the subject of taxation. 44 Nor is the contention of the Chamber of Real Estate and Builders Association (CREBA), petitioner in G.R. 115754, that the VAT will reduce the mark up of its members by as much as 85% to 90% any more concrete. It is a mere allegation. On the other hand, the claim of the Philippine Press Institute, petitioner in G.R. No. 115544, that the VAT will drive some of its members out of circulation because their profits from advertisements will not be enough to pay for their tax liability, while purporting to be based on the financial statements of the newspapers in question, still falls short of the establishment of facts by evidence so necessary for adjudicating the question whether the tax is oppressive and confiscatory. Indeed, regressivity is not a negative standard for courts to enforce. What Congress is required by the Constitution to do is to "evolve a progressive system of taxation." This is a directive to Congress, just like the directive to it to give priority to the enactment of laws for the enhancement of human dignity and the reduction of social, economic and political inequalities (Art. XIII, 1), or for the promotion of the right to "quality education" (Art. XIV, 1). These provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights. At all events, our 1988 decision in Kapatiran 45 should have laid to rest the questions now raised against the VAT. There similar arguments made against the original VAT Law (Executive Order No. 273) were held to be hypothetical, with no more basis than newspaper articles which this Court found to be "hearsay and [without] evidentiary value." As Republic Act No. 7716 merely expands the base of the VAT system and its coverage as provided in the original VAT Law, further debate on the desirability and wisdom of the law should have shifted to Congress. Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision that "No law impairing the obligation of contracts shall be passed." It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. 46 In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. 47 Such is not the case of PAL in G.R. No. 115852, and we do not understand it to make this claim. Rather, its position, as discussed above, is that the removal of its tax exemption cannot be made by a general, but only by a specific, law. The substantive issues raised in some of the cases are presented in abstract, hypothetical form because of the lack of a concrete record.

We accept that this Court does not only adjudicate private cases; that public actions by "non-Hohfeldian" 48 or ideological plaintiffs are now cognizable provided they meet the standing requirement of the Constitution; that under Art. VIII, 1, 2 the Court has a "special function" of vindicating constitutional rights. Nonetheless the feeling cannot be escaped that we do not have before us in these cases a fully developed factual record that alone can impart to our adjudication the impact of actuality 49 to insure that decision-making is informed and well grounded. Needless to say, we do not have power to render advisory opinions or even jurisdiction over petitions for declaratory judgment. In effect we are being asked to do what the Conference Committee is precisely accused of having done in these cases to sit as a third legislative chamber to review legislation. We are told, however, that the power of judicial review is not so much power as it is duty imposed on this Court by the Constitution and that we would be remiss in the performance of that duty if we decline to look behind the barriers set by the principle of separation of powers. Art. VIII, 1, 2 is cited in support of this view: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. To view the judicial power of review as a duty is nothing new. Chief Justice Marshall said so in 1803, to justify the assertion of this power in Marbury v. Madison: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 50 Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission: And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. 51 This conception of the judicial power has been affirmed in several cases 52 of this Court following Angara. It does not add anything, therefore, to invoke this "duty" to justify this Court's intervention in what is essentially a case that at best is not ripe for adjudication. That duty must still be performed in the context of a concrete case or controversy, as Art. VIII, 5(2) clearly defines our jurisdiction in terms of "cases," and nothing but "cases." That the other departments of the government may have committed a grave abuse of discretion is not an independent ground for exercising our power. Disregard of the essential limits imposed by the case and controversy requirement can in the long run only result in undermining our authority as a court of law. For, as judges, what we are called upon to render is judgment according to law, not according to what may appear to be the opinion of the day.

_______________________________ In the preceeding pages we have endeavored to discuss, within limits, the validity of Republic Act No. 7716 in its formal and substantive aspects as this has been raised in the various cases before us. To sum up, we hold: (1) That the procedural requirements of the Constitution have been complied with by Congress in the enactment of the statute; (2) That judicial inquiry whether the formal requirements for the enactment of statutes beyond those prescribed by the Constitution have been observed is precluded by the principle of separation of powers; (3) That the law does not abridge freedom of speech, expression or the press, nor interfere with the free exercise of religion, nor deny to any of the parties the right to an education; and (4) That, in view of the absence of a factual foundation of record, claims that the law is regressive, oppressive and confiscatory and that it violates vested rights protected under the Contract Clause are prematurely raised and do not justify the grant of prospective relief by writ of prohibition. WHEREFORE, the petitions in these cases are DISMISSED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-59068 January 27, 1983 JOSE MARI EULALIO C. LOZADA and ROMEO B. IGOT, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. DE CASTRO, J.: This is a petition for mandamus filed by Jose Mari Eulalio C. Lozada and Romeo B. Igot as a representative suit for and in behalf of those who wish to participate in the election irrespective of party affiliation, to compel the respondent COMELEC to call a special election to fill up existing vacancies numbering twelve (12) in the Interim Batasan Pambansa. The petition is based on Section 5(2), Article VIII of the 1973 Constitution which reads: (2) In case a vacancy arises in the Batasang Pambansa eighteen months or more before a regular election, the Commission on Election shall call a special election to be held within sixty (60) days after the vacancy occurs to elect the Member to serve the unexpired term. Petitioner Lozada claims that he is a taxpayer and a bonafide elector of Cebu City and a transient voter of Quezon City, Metro Manila, who desires to run for the position in the Batasan Pambansa; while petitioner Romeo B. Igot alleges that, as a taxpayer, he has standing to petition by mandamus the calling of a special election as mandated by the 1973 Constitution. As reason for their petition, petitioners allege that they are "... deeply concerned about their duties as citizens and desirous to uphold the constitutional mandate and rule of law ...; that they have filed the instant petition on their

own and in behalf of all other Filipinos since the subject matters are of profound and general interest. " The respondent COMELEC, represented by counsel, opposes the petition alleging, substantially, that 1) petitioners lack standing to file the instant petition for they are not the proper parties to institute the action; 2) this Court has no jurisdiction to entertain this petition; and 3) Section 5(2), Article VIII of the 1973 Constitution does not apply to the Interim Batasan Pambansa. The petition must be dismiss. I As taxpayers, petitioners may not file the instant petition, for nowhere therein is it alleged that tax money is being illegally spent. The act complained of is the inaction of the COMELEC to call a special election, as is allegedly its ministerial duty under the constitutional provision above cited, and therefore, involves no expenditure of public funds. It is only when an act complained of, which may include a legislative enactment or statute, involves the illegal expenditure of public money that the so-called taxpayer suit may be allowed. 1 What the case at bar seeks is one that entails expenditure of public funds which may be illegal because it would be spent for a purpose that of calling a special election which, as will be shown, has no authority either in the Constitution or a statute. As voters, neither have petitioners the requisite interest or personality to qualify them to maintain and prosecute the present petition. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 2 In the case before Us, the alleged inaction of the COMELEC to call a special election to fill-up the existing vacancies in the Batasan Pambansa, standing alone, would adversely affect only the generalized interest of all citizens. Petitioners' standing to sue may not be predicated upon an interest of the kind alleged here, which is held in common by all members of the public because of the necessarily abstract nature of the injury supposedly shared by all citizens. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. 3 When the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. 4 As adverted to earlier, petitioners have not demonstrated any permissible personal stake, for petitioner Lozada's interest as an alleged candidate and as a voter is not sufficient to confer standing. Petitioner Lozada does not only fail to inform the Court of the region he wants to be a candidate but makes indiscriminate demand that special election be called throughout the country. Even his plea as a voter is predicated on an interest held in common by all members of the public and does not demonstrate any injury specially directed to him in particular. II The Supreme Court's jurisdiction over the COMELEC is only to review by certiorari the latter's decision, orders or rulings. This is as clearly provided in Article XI IC Section 11 of the New Constitution which reads: Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. There is in this case no decision, order or ruling of the COMELEC which is sought to be reviewed by this Court under its certiorari jurisdiction as provided for in the aforequoted provision which is the

only known provision conferring jurisdiction or authority on the Supreme Court over the COMELEC. It is not alleged that the COMELEC was asked by petitioners to perform its alleged duty under the Constitution to call a special election, and that COMELEC has issued an order or resolution denying such petition. Even from the standpoint of an action for mandamus, with the total absence of a showing that COMELEC has unlawfully neglected the performance of a ministerial duty, or has refused on being demanded, to discharge such a duty; and as demonstrated above, it is not shown, nor can it ever be shown, that petitioners have a clear right to the holding of a special election. which is equally the clear and ministerial duty of COMELEC to respect, mandamus will not lie. 5 The writ will not issue in doubtful cases. 6 It is obvious that the holding of special elections in several regional districts where vacancies exist, would entail huge expenditure of money. Only the Batasan Pambansa can make the necessary appropriation for the purpose, and this power of the Batasan Pambansa may neither be subject to mandamus by the courts much less may COMELEC compel the Batasan to exercise its power of appropriation. From the role Batasan Pambansa has to play in the holding of special elections, which is to appropriate the funds for the expenses thereof, it would seem that the initiative on the matter must come from said body, not the COMELEC, even when the vacancies would occur in the regular not interim Batasan Pambansa. The power to appropriate is the sole and exclusive prerogative of the legislative body, the exercise of which may not be compelled through a petition for mandamus. What is more, the provision of Section 5(2), Article VIII of the Constitution was intended to apply to vacancies in the regular National Assembly, now Batasan Pambansa, not to the Interim Batasan Pambansa, as will presently be shown. III Perhaps the strongest reason why the aforecited provision of the Constitution is not intended to apply to the Interim National Assembly as originally envisioned by the 1973 Constitution is the fact that as passed by the Constitutional Convention, the Interim National Assembly was to be composed by the delegates to the Constitutional Convention, as well as the then incumbent President and Vice-President, and the members of the Senate and House of Representatives of Congress under the 1935 Constitution. With such number of representatives representing each congressional district, or a province, not to mention the Senators, there was felt absolutely no need for filing vacancies occurring in the Interim National Assembly, considering the uncertainty of the duration of its existence. What was in the mind of the Constitutional Convention in providing for special elections to fill up vacancies is the regular National Assembly, because a province or representative district would have only one representative in the said National Assembly. Even as presently constituted where the representation in the Interim Batasan Pambansa is regional and sectoral, the need to fill up vacancies in the Body is neither imperative nor urgent. No district or province would ever be left without representation at all, as to necessitate the filling up of vacancies in the Interim Batasan Pambansa. There would always be adequate representation for every province which only forms part of a certain region, specially considering that the Body is only transitory in character. The unmistakable intent of the Constitutional Convention as adverted to is even more positively revealed by the fact that the provision of Section 5(2) of Article VIII of the New Constitution is in the main body of the said Constitution, not in the transitory provisions in which all matters relating to the Interim Batasan Pambansa are found. No provision outside of Article VIII on the "Transitory Provisions" has reference or relevance to the Interim Batasan Pambansa.

Also under the original provision of the Constitution (Section 1, Article XVII-Transitory Provisions), the Interim National Assembly had only one single occasion on which to call for an election, and that is for the election of members of the regular National Assembly.1wph1.t The Constitution could not have at that time contemplated to fill up vacancies in the Interim National Assembly the composition of which, as already demonstrated, would not raise any imperious necessity of having to call special elections for that purpose, because the duration of its existence was neither known or pre-determined. It could be for a period so brief that the time prescriptions mentioned in Section 5(2), Article VIII of the Constitution cannot be applicable. The foregoing observations make it indubitably clear that the aforementioned provision for calling special elections to fill up vacancies apply only to the regular Batasan Pambansa. This is evident from the language thereof which speaks of a vacancy in the Batasan Pambansa, " which means the regular Batasan Pambansa as the same words "Batasan Pambansa" found in all the many other sections of Article VIII, undoubtedly refer to the regular Batasan, not the interim one. A word or phrase used in one part of a Constitution is to receive the same interpretation when used in every other part, unless it clearly appears, from the context or otherwise, that a different meaning should be applied. 7 WHEREFORE, the petition is hereby dismissed. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 149719 June 21, 2007

MOLDEX REALTY, INC., petitioner, vs. HOUSING AND LAND USE REGULATORY BOARD, OFFICE OF APPEALS, ADJUDICATION AND LEGAL AFFAIRS, EDITHA U. BARRAMEDA in her capacity as Regional Officer and METROGATE COMPLEX VILLAGE HOMEOWNERS ASSOCIATION, INC., respondent. DECISION TINGA, J.: This is a petition for prohibition and certiorari under Rule 65 of the Rules of Court, seeking the nullification of Resolution No. R-562, series of 1994, issued by the Housing and Urban Development Coordinating Council (HUDCC), as well as the two issuances and the writ of mandatory injunction issued by public respondent Housing and Land Use Regulatory Board (HLURB) in connection with the implementation of the assailed Resolution. The factual antecedents are as follows: Petitioner Moldex Realty, Inc. is a domestic corporation engaged in real estate development. It is the owner-developer of Metrogate Complex Phase I, a subdivision situated in Meycauayan, Marilao, Bulacan. In 1988, the HLURB issued petitioner a License to Sell 696 parcels of land within the subdivision. In 1993, a sufficient number of lot buyers and homeowners in the subdivision formally organized to become the Metrogate Complex Village Homeowners Association (respondent association).

Petitioner claims that since the completion of the subdivision, it had been subsidizing and advancing the payment for the delivery and maintenance of common facilities including the operation of streetlights and the payment of the corresponding electric bills. However, in 2000, petitioner decided to stop paying the electric bills for the streetlights and advised respondent association to assume this obligation. Respondent association objected to petitioners resolution and refused to pay the electric bills. Thus, Meralco discontinued its service, prompting respondent association to apply for a preliminary injunction and preliminary mandatory injunction with the HLURB against petitioner. On 5 April 2001, Editha U. Barrameda, in her capacity as Regional Officer of HLURBs Office of Appeals, Adjudication and Legal Affairs, issued a Resolution granting respondent associations application for injunction. In support of the Resolution, Barrameda cited the relevant provisions of Presidential Decree (PD) Nos. 957 and 1216 and HUDCC Resolution No. R-562, series of 1994. HUDCC Resolution No. R-562, series of 1994, particularly provides that "subdivision owners/developers shall continue to maintain street lights facilities and, unless otherwise stipulated in the contract, pay the bills for electric consumption of the subdivision street lights until the facilities in the project are turned over to the local government until after completion of development in accordance with PD 957, PD 1216 and their implementing rules and regulations."1 Petitioner moved for reconsideration but was rebuffed in an Order dated 28 May 2001.2 After respondent association filed a bond, Barrameda issued a writ of preliminary mandatory injunction dated 28 June 2001 ordering petitioner to assume the obligation of paying the cost of electricity of the streetlights starting from December 2000 until their turn over or donation to the Municipality of Meycauayan.3 Petitioner elevated the matter to the Court of Appeals by filing a Petition for Prohibition and Certiorari, praying not only for the reversal of the writ of preliminary mandatory injunction, as well as the Resolution dated 5 April 2001 and the Order dated 28 May 2001, but also for the nullification of HUDCC Resolution No. R-562, series of 1994, on the ground that it is unconstitutional. During the pendency of the petition before the Court of Appeals, the HUDCC approved Board Resolution No. R-699, series of 2001, entitled Amending the Rules and Regulations Implementing the Subdivision and Condominium Buyers Protective Decree and Other Related Laws.4 On 27 August 2001, the Court of Appeals dismissed the petition on the ground that petitioner should have raised the constitutionality of HUDCC Resolution No. R-562, series of 1994, directly to this Court. The appellate court likewise found that no proof was submitted to show Mr. Juanito Maltos authority to execute the requisite verification and certification against non-forum shopping in behalf of petitioner.5 Following the Court of Appeals pronouncement that constitutional issues should be raised directly before this Court, petitioner instituted on 21 September 2001 an action for certiorari and prohibition. 6 The petition reiterated the prayer for the reversal of the writ of preliminary mandatory injunction, the Resolution dated 5 April 2001 and the Order dated 28 May 2001, all issued by the HLURB and for the setting aside of HUDCC Resolution No. R-562, series of 1994. The instant petition is anchored on the following arguments: 1. Resolution No. 526 Series of 1994 issued by the HUDCC is unconstitutional for being a void exercise of legislative power. 2. Public respondent gravely abused its direction in issuing the Mandatory Injunction on the basis of a void regulation (HU[D]CC Resolution No. 526 Series of 1994).

3. Public respondent abused its discretion in not commanding that the obligation to maintain the subdivision including the payment of the streetlight consumption belongs exclusively to private respondents.7 In its Comment,8 respondent association brought up the tardy filing of the instant petition. It contends that the instant petition, which assails the two HLURB issuances dated 5 April 2001 and 28 May 2001, was filed beyond the 60-day reglementary period for filing a petition for certiorari under Rule 65 of the Rules of Court. In its opinion, the prior filing of a petition for certiorari with the Court of Appeals did not toll the running of the 60day period. The Solicitor General agrees, pointing out that the instant petition, captioned as Petition for Prohibition and Certiorari, does not assail the Decision of the Court of Appeals but the twin issuances and the writ of mandatory injunction issued by the HLURB and, therefore, should have been filed within 60 days from petitioners receipt on 18 June 2001 of the HLURB Order dated 28 May 2001. It appears that when reckoned from 18 June 2001, the filing of the instant petition would go beyond the 60-day reglementary period. Petitioner maintains, on the contrary, that it filed a petition for certiorari with the Court of Appeals within the reglementary period, but the same was dismissed by the appellate court and "referred" to this Court, as it raised a constitutional issue. When an administrative regulation is attacked for being unconstitutional or invalid, a party may raise its unconstitutionality or invalidity on every occasion that the regulation is being enforced. For the Court to exercise its power of judicial review, the party assailing the regulation must show that the question of constitutionality has been raised at the earliest opportunity. 9 This requisite should not be taken to mean that the question of constitutionality must be raised immediately after the execution of the state action complained of. That the question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised later. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.10 In the instant case, petitioner has complied with the requirement that the issue of the constitutionality of the subject HUDCC Resolution must be timely raised. Petitioner had already raised the question of constitutionality in its petition filed with the Court of Appeals. The alleged injury caused to petitioner as a result of the implementation of the HUDCC Resolution is continuous in nature in that as long as the assailed resolution is effective, petitioner is obliged to pay for the electricity cost of the streetlights. For every occasion that petitioner is directed to comply with the assailed resolution, a new cause of action to question its validity accrues in favor of petitioner. Thus, the instant petition is not time-barred. The Solicitor General also points out that it is the Regional Trial Court, and not this Court nor the Court of Appeals, which has jurisdiction to take cognizance of this original action for certiorari and prohibition, notwithstanding Section 4, Rule 6511 of the Rules of Court. It must be emphasized that this Court does not have exclusive original jurisdiction over petitions assailing the constitutionality of a law or an administrative regulation. In Drilon v. Lim,12 it was clearly stated that the lower courts also have jurisdiction to resolve the constitutionality at the first instance, thus: We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. x x x Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law,

presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.13 The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation, except in circumstances where the Court believes that resolving the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately affects the social, economic and moral well being of the people. Thus, the Court of Appeals erred in ruling that a question on the constitutionality of a regulation may be brought only to this Court. The instant petition does not allege circumstances and issues of transcendental importance to the public requiring their prompt and definite resolution and the brushing aside of technicalities of procedure. Neither is the Court convinced that the issues presented in this petition are of such nature that would nudge the lower courts to defer to the higher judgment of this Court. The application of the assailed HUDCC resolution mainly affects the proprietary interests of the parties involved and can hardly be characterized as overriding to the general well-being of the people. Ultimately, the Court is called upon to resolve the question of who bears the obligation of paying electricity cost, a question that the lower courts undoubtedly have the competence to resolve. However, it is also a well-established rule that a court should not pass upon a constitutional question and decide a law, or an administrative regulation as in the instant case, to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may raise its judgment, that course will be adopted and the constitutional question will be left for consideration until such question will be unavoidable.14 In other words, the Court will not touch the issue of unconstitutionality unless it is the very lis mota of the case.15 Apart from the non-observance of the hierarchy of courts principle, a subsequent development occurred which has not only rendered the question of constitutionality unpivotal but made the resolution of the case itself a pure theoretical exercise. During the pendency of the petition before the Court of Appeals, Board Resolution No. 699, series of 2001, entitled Amending the Rules and Regulations Implementing the Subdivision and Condominium Buyers Protective Decree and Other Related Laws, was passed by the HUDCC. The regulation amended certain design standards for subdivision projects, among which is the proportionate obligation of subdivision homeowners in the payment of the electricity cost of streetlights.16 The amendatory provision has superseded the provision in HUDCC Resolution No. R-562, series of 1994, directing subdivision developers to shoulder the electricity cost of streetlights. At the time of the filing of the instant petition, the new provision was already in effect. That being the situation, the instant petition has become moot and academic. One final note. In the main, petitioner is assailing the constitutionality of Resolution No. R-562, series of 1994, issued by the HUDCC. However, the HUDCC, although obviously an indispensable party, was not impleaded either in the instant petition or in the petition before the Court of Appeals. An indispensable party is a party in interest without whom no final determination can be had of an action, and who shall be joined either as plaintiffs or defendants. The joinder of indispensable parties is mandatory. The presence of indispensable parties is necessary to vest the court with jurisdiction, which is "the authority to hear and determine a cause, the right to act in a case." Thus, without the presence of indispensable parties to a suit or proceeding, the judgment of a court cannot attain real finality. The absence of an indispensable parties renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.17 That is why the case is generally remanded to the court of origin for further proceedings. In this case, however, remand is not feasible because the initial action has to be discarded for failure to observe the hierarchy of courts principle. WHEREFORE, the instant petition is DISMISSED. Costs against petitioner.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 89604 April 20, 1990 ROQUE FLORES, petitioner, vs. COMMISSION ON ELECTIONS , NOBELITO RAPISORA, respondents. Felix B. Claustro for petitioner. Romeo B. Astudillo for private respondent.

CRUZ, J.: Petitioner Roque Flores was proclaimed by the board of canvassers as having received the highest number of votes for kagawad in the elections held on 28 March 1989, in Barangay Poblacion, Tayum, Abra, and thus became punong barangay in accordance with Section 5 of Rep. Act No. 6679, providing in part as follows Sec. 5. There shall be a sangguniang barangay in every duly constituted barangay which shall be the legislative body and shall be composed of seven (7) kagawads to be elected by the registered voters of the barangay. The candidate who obtains the highest number of votes shall be the punong barangay . . . . However, his election was protested by Nobelito Rapisora, herein private respondent, who placed second in the election with 463 votes, or one vote less than the petitioner. The Municipal Circuit Trial Court of Tayum, Abra, sustained Rapisora and installed him as punong barangay in place of the petitioner after deducting two votes as stray from the latter's total. 1 Flores appealed to the Regional Trial Court of Abra, which affirmed the challenged decision in toto. Judge Francisco O. Villarta, Jr. agreed that the four votes cast for "Flores" only, without any distinguishing first name or initial, should all have been considered invalid instead of being divided equally between the petitioner and Anastacio Flores, another candidate for kagawad. The judge held that the original total credited to the petitioner was correctly reduced by 2, to 462, demoting him to second place. 2 The petitioner then went to the Commission on Elections, but his appeal was dismissed on the ground that the public respondent had no power to review the decision of the regional trial court. This ruling, embodied in its resolution dated 3 August 1989, 3 was presumably based on Section 9 of Rep. Act No. 6679, which was quoted therein in full as follows: Sec. 9. A sworn petition contesting the election of a barangay official may be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for a barangay office within ten (10) days after the proclamation of the result of the election. The trial court shall

decide the election protest within (30) days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten (10) days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide the issue within thirty (30) days from receipt of the appeal and whose decision on questions of fact shall be final and non-appealable. For purposes of the barangay elections, no pre-proclamation cases shall be allowed. In this petition for certiorari, the Commission on Elections is faulted for not taking cognizance of the petitioner's appeal and for not ruling that all the four questioned votes should have been credited to him under the equity of the incumbent rule in Section 211(2) of the Omnibus Election Code. The Commission on Elections was obviously of the opinion that it could not entertain the petitioner's appeal because of the provision in Rep. Act No. 6679 that the decision of the regional trial court in a protest appealed to it from the municipal trial court in barangay elections "on questions of fact shall be final and non-appealable." While supporting the dismissal of the appeal, the Solicitor General justifies this action on an entirely different and more significant ground, to wit, Article IX-C, Section 2(2) of the Constitution, providing that the Commission on Elections shall: (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction . (Emphasis supplied.) Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. His submission is that municipal or metropolitan courts being courts of limited jurisdiction, their decisions in barangay election contests are subject to the exclusive appellate jurisdiction of the Commission on Elections under the afore-quoted section. Hence, the decision rendered by the Municipal Circuit Trial Court of Tayum, Abra, should have been appealed directly to the Commission on Elections and not to the Regional Trial Court of Abra. It is recalled that in the case of Luison v. Garcia, 4 respondent Garcia's certificate of candidacy was declared invalid by the Commission on Elections for non-compliance with the statutory requirements. What he did was appeal to the court of first instance, which held that the certificate was merely defective but not altogether null and void. Garcia continued his candidacy on the strength of this ruling and was subsequently proclaimed elected, thereafter assuming office as municipal mayor. In sustaining the quo warranto petition filed against him by Luison, this Court declared that all the votes cast for Garcia should have been rejected as stray because he did not have a valid certificate of candidacy. The action of the Commission on Elections should have been appealed not to the court of first instance but to the Supreme Court as required by the 1935 Constitution. Since this was not done, the resolution of the Commission on Elections rejecting Garcia's certificate remained valid on the date of the election and rendered all votes cast for him as stray.

The doctrine in that case, although laid down under the 1935 Constitution, is still controlling under the present charter as the interpretation by this Court of Article IX-C, Section 2(2). Accordingly, Section 9 of Rep. Act No. 6679, insofar as it provides that the decision of the municipal or metropolitan court in a barangay election case should be appealed to the regional trial court, must be declared unconstitutional. We make this declaration even if the law has not been squarely and properly challenged by the petitioner. Ordinarily, the Court requires compliance with the requisites of a judicial inquiry into a constitutional question. 5 In the case at bar, however, we feel there is no point in waiting to resolve the issue now already before us until it is raised anew, probably only in the next barangay elections. The time to resolve it is now, before such elections. We shall therefore disregard the technical obstacles in the case at bar so that the flaw in Rep. Act No. 6679 may be brought to the attention of Congress and the constitutional defect in Section 9 may be corrected. In taking this step, the Court does not disregard the fact that the petitioner was only acting in accordance with the said law when he appealed the decision of the Municipal Circuit Trial Court of Tayum to the Regional Trial Court of Abra. That is what the statute specifically directed in its Section 9 which, at the time the appeal was made, was considered constitutional. The petitioner had a light to rely on its presumed validity as everyone apparently did. Even the Congress and the Executive were satisfied that the measure was constitutional when they separately approved it after careful study. Indeed, no challenge to its validity had been lodged or even hinted not even by the public respondent as to suggest to the petitioner that he was following the wrong procedure. In fairness to him therefore, we shall consider his appeal to the Commission on Elections as having been made directly from the Municipal Circuit Trial Court of Tayum, Abra, disregarding the detour to the Regional Trial Court. Accordingly, we hold that the petitioner's appeal was validly made to the Commission on Elections under its "exclusive appellate jurisdiction over all contests. . . involving elective barangay officials decided by trial courts of limited jurisdiction." Its decision was in turn also properly elevated to us pursuant to Article IX-A, Section 7, of the Constitution, stating that "unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. 6 We eschew a literal reading of that provision that would contradict such authority. The issue the petitioner was raising was one of law, viz., whether he was entitled to the benefits of the equity-of-the-incumbent rule, and so subject to our review. This issue was not resolved by the public respondent because it apparently believed itself to be without appellate jurisdiction over the decision of the Regional Trial Court of Abra. Considering that the public respondent has already manifested its position on this issue, as will appear presently, the Court will now rule upon it directly instead of adopting the roundabout way of remanding the case to the Commission on Elections before its decision is elevated to this Court. Implementing Rep. Act No. 6679, the Commission on Elections promulgated Resolution No. 2022-A providing in Section 16(3) thereof that:

Incumbent Barangay Captains, whether elected, appointed or designated shall be deemed resigned as such upon the filing of their certificates of candidacy for the office of "Kagawad," which is another office, for the March 28, 1989 barangay election. This was the reason why the Municipal Circuit Trial Court of Tayum, Abra, held that the four questioned votes cast for Flores could not be credited to either Roque Flores or Anastacio Flores and should have been regarded as stray under Section 211(1) 7 of the Omnibus Election Code. Rejecting the petitioner's claim, the court held that Roque Flores was not entitled to any of the four contested votes because he was not incumbent as punong barangay (or barangay captain, as the office was formerly called) on the date of the election. The petitioner insists on the application to him of Section 211(2) of the Code, stating pertinently that: 2. . . . If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. because he should not have been considered resigned but continued to be entitled to the office of punong barangay under Section 8 of Rep. Act No. 6679, providing as follows: Sec. 8. Incumbent elective officials running for the same office shall not be considered resigned upon the filing of then, certificates of candidacy. They shall continue to hold office until their successors shall have been elected and qualified. The petitioner contends that the afore-quoted administrative regulation is inofficious because the forfeiture prescribed is not authorized by the statute itself and beyond the intentions of the legislature. Moreover, the enforcement of the rule would lead to discrimination against the punong barangay and in favor of the other kagawads, who, unlike him, could remain in office while running for re-election and, additionally, benefit from the equity-of-theincumbent rule. Alternatively, the petitioner argues that, assuming the regulation to be valid he was nonetheless basically also a kagawad as he was a member of the sangguniang barangay like the other six councilmen elected with him in 1982. In fact, Section 5 of the Rep. Act No. 6679 also speaks of seven kagawads, the foremost of whom shall again be the punong barangay. He concludes that he should thus be regarded as running for the same office and therefore not considered resigned when he filed his certificate of candidacy for kagawad. The Court does not agree. It seems to us that the challenged resolution quite clearly expresses the mandate of the above-quoted Section 8 that all incumbent elected officials should not be considered resigned upon the filing of their certificates of candidacy as long as they were running for the same position. The purpose of the resolution was merely to implement this intention, which was clearly applicable not only to the ordinary members of the sangguniang barangay but also to the punong barangay.

As for the questioned authority, this is found in Section 52 of the Omnibus Election Code, which empowers the public respondent to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer. . . ." The justification given by the resolution is that the position of punong barangay is different from that of kagawad as in fact it is. There should be no question that the punong barangay is an essentially executive officer, as the enumeration of his functions in Section 88 of the Local Government Code will readily show, unlike the kagawad, who is vested with mainly legislative functions (although he does assist the punong barangay in the administration of the barangay). Under Rep. Act No. 6679, the person who wins the highest number of votes as a kagawad becomes by operation of law the punong barangay, or the executive of the political unit. In the particular case of the petitioner, it should be noted that he was in fact not even elected in 1982 as one of the six councilmen but separately as the barangay captain. He was thus correctly deemed resigned upon his filing of a certificate of candidacy for kagawad in 1989, as this was not the position he was holding, or was incumbent in, at the time he filed such certificate. It is worth stressing that under the original procedure followed in the 1982 barangay elections, the petitioner was elected barangay captain directly by the voters, separately from the candidates running for mere membership in the sangguniang barangay. The offices of the barangay captain and councilmen were both open to the candidates, but they could run only for one or the other position and not simultaneously for both. By contrast, the candidate under the present law may aspire for both offices, but can run only for one, to wit, that of kagawad. While campaigning for this position, he may hope and actually strive to win the highest number of votes as this would automatically make him the punong barangay. In this sense, it may be said that he is a candidate for both offices. Strictly speaking, however, the only office for which he may run and for which a certificate of candidacy may be admitted is that of kagawad. It follows that the petitioner cannot insist that he was running not for kagawad only but ultimately also for punong barangay in the 28 March 1989 election. In fact, his certificate of candidacy was for kagawad and not for punong barangay. As the basic position being disputed in the barangay election was that of kagawad, that of punong barangay being conferred only by operation of law on the candidate placing first, the petitioner had to forfeit his position of punong barangay, which he was holding when he presented his candidacy for kagawad. Consequently, he cannot be credited with the four contested votes for Flores on the erroneous ground that he was still incumbent as punong barangay on the day of the election. The petitioner argues that he could not have run for reelection as punong barangay because the office was no longer subject to separate or even direct election by the voters. That may be so, but this argument goes to the wisdom of the law, not its validity, and is better addressed to the legislature. From the strictly legal viewpoint, the statute does not offend the equal protection clause, as there are, to repeat, substantial distinctions between the offices of punong barangay and kagawad. Precisely , the reason for divesting the punong barangay of his position was to place him on the same footing as the other candidates by removing the advantages he would enjoy if he were to continue as punong barangay while running for kagawad. In sum, we hold that Section 9 of Rep. Act No. 6679 is constitutionally defective and must be struck down, but the challenged resolution must be sustained as a reasonable and valid implementation of the said statute. The petitioner was no longer the incumbent punong barangay on election day and so was not entitled to the benefits of the equity-of-the-incumbent rule. The consequence is that the four votes claimed by him were correctly considered stray, making the private respondent the punong barangay of Poblacion,

Tayum, Abra, for having received the highest number of votes for kagawad. It remains to stress that although the elections involved herein pertain to the lowest level of our political organization, this fact has not deterred the highest tribunal from taking cognizance of this case and discussing it at length in this opinion. This only goes to show that as long as a constitutional issue is at stake, even the barangay and its officers, for all their humility in the political hierarchy, deserve and will get the full attention of this Court. WHEREFORE, the petition is DISMISSED. Judgment is hereby rendered: 1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it provides that barangay election contests decided by the municipal or metropolitan trial court shall be appealable to the regional trial court; 2. Declaring valid Section 16(3) of Com. Res. No. 2022-A dated January 5, 1989; and 3. Declaring private respondent Nobelito Rapisora the duly elected punong barangay of Poblacion, Tayum, Abra. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 129742 September 16, 1998 TERESITA G. FABIAN, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V. AGUSTIN, respondents.

PROMAT participated in the bidding for government construction projects including those under the FMED, and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an amorous relationship. Their affair lasted for some time, in the course of which private respondent gifted PROMAT with public works contracts and interceded for it in problems concerning the same in his office. Later, misunderstandings and unpleasant incidents developed between the parties and when petitioner tried to terminate their relationship, private respondent refused and resisted her attempts to do so to the extent of employing acts of harassment, intimidation and threats. She eventually filed the aforementioned administrative case against him in a letter-complaint dated July 24, 1995. The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral conduct. On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private respondent guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant Ombudsman Abelardo Aportadera of their office. Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution with modifications, by finding private respondent guilty of misconduct and meting out the penalty of suspension without pay for one year. After private respondent moved for reconsideration, respondent Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence he inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who, in the now challenged Joint Order of June 18, 1997, set aside the February 26, 1997 Order of respondent Ombudsman and exonerated private respondent from the administrative charges. II In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989) 1 pertinently provides that In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Emphasis supplied) However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), 2 when a respondent is absolved of the charges in an administrative proceeding the decision of the Ombudsman is final and unappealable. She accordingly submits that the Office of the Ombudsman has no authority under the law to restrict, in the manner provided in its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of review of this Court. Because of the aforecited provision in those Rules of Procedure, she claims that she found it "necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the availability of appeal under Rule 45 of the Rules of Court.

REGALADO, J.: Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order" issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the motion for reconsideration of and absolved private respondent from administrative charges for inter alia grave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department of Public Works and Highways (DPWH). I It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G. Fabian was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which was engaged in the construction business. Private respondent Nestor V. Agustin was the incumbent District Engineer of the First Metro Manila Engineering District (FMED) when he allegedly committed the offenses for which he was administratively charged in the Office of the Ombudsman.

Respondents filed their respective comments and rejoined that the Office of the Ombudsman is empowered by the Constitution and the law to promulgate its own rules of procedure. Section 13(8), Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can "(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law." Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions: Sec. 14. Restrictions. . . . No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman except the Supreme Court on pure questions of law. xxx xxx xxx Sec. 18. Rules of Procedure. (1) The Office of the Ombudsman shall promulgate its own rules of procedure for the effective exercise or performance of its powers, functions, and duties. xxx xxx xxx Sec. 23. Formal Investigation. (1) Administrative investigations by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. . . . . xxx xxx xxx Sec. 27. Effectivity and Finality of Decisions. All previsionary orders at the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds: xxx xxx xxx Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month salary shall be final and unappealable. In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.

Respondents consequently contend that, on the foregoing constitutional and statutory authority, petitioner cannot assail the validity of the rules of procedure formulated by the Office of the Ombudsman governing the conduct of proceedings before it, including those rules with respect to the availability or nonavailability of appeal in administrative cases, such as Section 7, Rule III of Administrative Order No. 07. Respondents also question the propriety of petitioner's proposition that, although she definitely prefaced her petition by categorizing the same as "an appeal by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted ambivalent statement which in effect asks that, should the remedy under Rule 45 be unavailable, her petition be treated in the alternative as an original action for certiorari under Rule 65. The parties thereafter engage in a discussion of the differences between a petition for review on certiorari under Rule 45 and a special civil action of certiorari under Rule 65. Ultimately, they also attempt to review and rationalize the decisions of this Court applying Section 27 of Republic Act. No. 6770 vis-a-vis Section 7, Rule III of Administrative Order No. 07. As correctly pointed out by public respondent, Ocampo IV vs. Ombudsman, et al. 3 and Young vs. Office of the Ombudsman, et al. 4 were original actions for certiorari under Rule 65. Yabut vs. Office of the Ombudsman, et al. 5 was commenced by a petition for review on certiorari under Rule 45. Then came Cruz, Jr. vs. People, et al., 6 Olivas vs. Office of the Ombudsman, et al ., 7 Olivarez vs. Sandiganbayan, et al., 8 and Jao, et al. vs. Vasquez, 9 which were for certiorari, prohibition and/or mandamus under Rule 65. Alba vs. Nitorreda, et al. 10 was initiated by a pleading unlikely denominated as an "Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano Desierto, et al. 11 which was a special civil action for certiorari. Considering, however, the view that this Court now takes of the case at bar and the issues therein which will shortly be explained, it refrains from preemptively resolving the controverted points raised by the parties on the nature and propriety of application of the writ of certiorari when used as a mode of appeal or as the basis of a special original action, and whether or not they may be resorted to concurrently or alternatively, obvious though the answers thereto appear to be. Besides, some seemingly obiter statements in Yabut and Alba could bear reexamination and clarification. Hence, we will merely observe and lay down the rule at this juncture that Section 27 of Republic Act No. 6770 is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action. III After respondents' separate comments had been filed, the Court was intrigued by the fact, which does not appear to have been seriously considered before, that the administrative liability of a public official could fall under the jurisdiction of both the Civil Service Commission and the Office of the Ombudsman. Thus, the offenses imputed to herein private respondent were based on both Section 19 of Republic Act No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the amendment of Section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by the Civil Service Commission in administrative disciplinary cases were made appealable to the Court of Appeals effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this Court. It could thus be possible that in the same administrative case involving two respondents, the proceedings against one could eventually have been elevated to the Court of Appeals, while the other may have found its way to the Ombudsman from which it is sought to be brought to this Court. Yet systematic and efficient case

management would dictate the consolidation of those cases in the Court of Appeals, both for expediency and to avoid possible conflicting decisions. Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and consent," and that Republic Act No. 6770, with its challenged Section 27, took effect on November 17, 1989, obviously in spite of that constitutional prohibition. The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain. Since the constitution is intended for the observance of the judiciary and other departments of the government and the judges are sworn to support its provisions; the courts are not at liberty to overlook or disregard its commands or countenance evasions thereof. When it is clear that a statute transgresses the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the statute, governs in a case before them for judgment. 12 Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings, 13 the rule has been recognized to admit of certain exceptions. It does not preclude a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute. 14 Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on the court's own motion. 15 The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is developed. 16 The court has a clearly recognized right to determine its own jurisdiction in any proceeding. 17 The foregoing authorities notwithstanding, the Court believed that the parties hereto should be further heard on this constitutional question. Correspondingly, the following resolution was issued on May 14, 1998, the material parts stating as follows: The Court observes that the present petition, from the very allegations thereof, is "an appeal by certiorari under Rule 45 of the Rules of Court from the "Joint Order (Re: Motion for Reconsideration)" issued in OMB-Adm. Case No. 0-95-0411, entitled "Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-A, EDSA, Quezon City," which absolved the latter from the administrative charges for grave misconduct, among others. It is further averred therein that the present appeal to this Court is allowed under Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto, the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was enacted on November 17, 1989, with Section 27 thereof pertinently providing that all administrative disciplinary cases, orders, directives or decisions of the Office of the

Ombudsman may be appealed to this Court in accordance with Rule 45 of the Rules of Court. The Court notes, however, that neither the petition nor the two comments thereon took into account or discussed the validity of the aforestated Section 27 of R.A. No. 8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and consent." The Court also invites the attention of the parties to its relevant ruling in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the provisions of its former Circular No. 1-91 and Revised Administrative Circular No. 1-95, as now substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil Procedure. In view of the fact that the appellate jurisdiction of the Court is invoked and involved in this case, and the foregoing legal considerations appear to impugn the constitutionality and validity of the grant of said appellate jurisdiction to it, the Court deems it necessary that the parties be heard thereon and the issue be first resolved before conducting further proceedings in this appellate review. ACCORDINGLY, the Court Resolved to require the parties to SUBMIT their position and arguments on the matter subject of this resolution by filing their corresponding pleadings within ten (10) days from notice hereof. IV The records do not show that the Office of the Solicitor General has complied with such requirement, hence the Court dispenses with any submission it should have presented. On the other hand, petitioner espouses the theory that the provision in Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this Court of the aforementioned adjudications of the Office of the Ombudsman is not violative of Section 30, Article VI of the Constitution. She claims that what is proscribed is the passage of a law "increasing" the appellate jurisdiction of this Court "as provided in this Constitution," and such appellate jurisdiction includes "all cases in which only an error or question of law is involved." Since Section 5(2)(e), Article VIII of the Constitution authorizes this Court to review, revise, reverse, modify, or affirm on appeal or certiorari the aforesaid final judgment or orders "as the law or the Rules of Court may provide," said Section 27 does not increase this Court's appellate jurisdiction since, by providing that the mode of appeal shall be by petition for certiorari under Rule 45, then what may be raised therein are only questions of law of which this Court already has jurisdiction. We are not impressed by this discourse. It overlooks the fact that by jurisprudential developments over the years, this Court has allowed appeals by certiorari under Rule 45 in a substantial number of cases and instances even if questions of fact are directly involved and have to be resolved by the appellate court. 18 Also, the very provision cited by petitioner specifies that the appellate jurisdiction of this Court contemplated therein is to be exercised over "final judgments and orders of lower courts," that is, the courts composing the integrated judicial system. It does not include the quasi-judicial

bodies or agencies, hence whenever the legislature intends that the decisions or resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, a specific provision to that effect is included in the law creating that quasijudicial agency and, for that matter, any special statutory court. No such provision on appellate procedure is required for the regular courts of the integrated judicial system because they are what are referred to and already provided for, in Section 5, Article VIII of the Constitution. Apropos to the foregoing, and as correctly observed by private respondent, the revised Rules of Civil Procedure 19 preclude appeals from quasi-judicial agencies to the Supreme Court via a petition for review on certiorari under Rule 45. In the 1997 Rules of Civil Procedure, Section 1 of Rule 45, on "Appeal by Certiorari to the Supreme Court," explicitly states: Sec. 1. Filing of petition with Supreme Court . A person desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (Emphasis ours). This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court of Appeals, and had to be adopted in statutes creating and providing for appeals from certain administrative or quasi-judicial agencies, whenever the purpose was to restrict the scope of the appeal to questions of law. That intended limitation on appellate review, as we have just discussed, was not fully subserved by recourse to the former Rule 45 but, then, at that time there was no uniform rule on appeals from quasi-judicial agencies. Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only from judgments and final orders of the courts enumerated in Section 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies 20 are now required to be brought to the Court of Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies. 21 It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is a "high constitutional body." We see no reason for this distinction for, if hierarchical rank should be a criterion, that proposition thereby disregards the fact that Rule 43 even includes the Office of the President and the Civil Service Commission, although the latter is even an independent constitutional commission, unlike the Office of the Ombudsman which is a constitutionally-mandated but statutorily created body. Regarding the misgiving that the review of the decision of the Office of the Ombudsman by the Court of Appeals would cover questions of law, of fact or of both, we do not perceive that as an objectionable feature. After all, factual controversies are usually involved in administrative disciplinary actions, just like those coming from the Civil Service Commission, and the Court of Appeals as a trier of fact is better prepared than this Court to resolve the same. On the other hand, we cannot have this situation covered by Rule 45 since it now applies only to appeals from the regular courts. Neither can we place it under Rule 65 since the review therein is limited to jurisdictional questions. * The submission that because this Court has taken cognizance of cases involving Section 27 of Republic Act No. 6770, that fact may

be viewed as "acquiescence" or "acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not a question of acquiescence as a matter of fact but an issue of conferment as a matter of law. Besides, we have already discussed the cases referred to, including the inaccuracies of some statements therein, and we have pointed out the instances when Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770 now under discussion, and when that provision would not apply if it is a judicial review under Rule 65. Private respondent invokes the rule that courts generally avoid having to decide a constitutional question, especially when the case can be decided on other grounds. As a general proposition that is correct. Here, however, there is an actual case susceptible of judicial determination. Also, the constitutional question, at the instance of this Court, was raised by the proper parties, although there was even no need for that because the Court can rule on the matter sua sponte when its appellate jurisdiction is involved. The constitutional question was timely raised, although it could even be raised any time likewise by reason of the jurisdictional issue confronting the Court. Finally, the resolution of the constitutional issue here is obviously necessary for the resolution of the present case. 22 It is, however, suggested that this case could also be decided on other grounds, short of passing upon the constitutional question. We appreciate the ratiocination of private respondent but regret that we must reject the same. That private respondent could be absolved of the charge because the decision exonerating him is final and unappealable assumes that Section 7, Rule III of Administrative Order No. 07 is valid, but that is precisely one of the issues here. The prevailing rule that the Court should not interfere with the discretion of the Ombudsman in prosecuting or dismissing a complaint is not applicable in this administrative case, as earlier explained. That two decisions rendered by this Court supposedly imply the validity of the aforementioned Section 7 of Rule III is precisely under review here because of some statements therein somewhat at odds with settled rules and the decisions of this Court on the same issues, hence to invoke the same would be to beg the question. V Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the appellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. 23 was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court. 24 We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics and some statements in Yabut and Alba, not only because of the difference in the factual settings, but also because those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this case. By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction. Furthermore, in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of

what would later be Republic Act No. 6770, was approved on second reading by the House of Representatives. 25 The Senate was informed of the approval of the final version of the Act on October 2, 1989 26 and the same was thereafter enacted into law by President Aquino on November 17, 1989. Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of the Constitution. It also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the matter, thus: INTERPELLATION OF SENATOR SHAHANI xxx xxx xxx Thereafter, with reference to Section 22(4) which provides that the decisions of the Office of the Ombudsman may be appealed to the Supreme Court, in reply to Senator Shahani's query whether the Supreme Court would agree to such provision in the light of Section 30, Article VI of the Constitution which requires its advice and concurrence in laws increasing its appellate jurisdiction, Senator Angara informed that the Committee has not yet consulted the Supreme Court regarding the matter. He agreed that the provision will expand the Supreme Court's jurisdiction by allowing appeals through petitions for review, adding that they should be appeals on certiorari. 27 There is no showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and consent. 28 VI As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43. There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which, being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it results in a diminution, increase or modification of substantive rights. Obviously, however, where the law is procedural in essence and purpose, the foregoing consideration would not pose a proscriptive issue against the exercise of the rule-making power of this Court. This brings to fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural. It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. 29 It is admitted that what is procedural and what is substantive is frequently a question of great difficulty. 30 It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. 31 If the rule takes away a vested right, it is no; procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 32 In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only. 33 This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. 34 Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy. 35 Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect 36 or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the Court of Appeals can be sustained. WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect. The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said petition to be considered by the Court of Appeals pro hoc vice as a petition for review under Rule 43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents or records as it may deem necessary and proper. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23127 April 29, 1971

FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee, vs. PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendant-appellant. Dionisio E. Moya for plaintiff-appellee. Ramon B. de los Reyes for defendant-appellant.

1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. 3 It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication. In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official." 4 This language has been quoted with approval in a resolution in Araneta v. Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. 7 2. Such an approach all the more commends itself whenever police power legislation intended to promote public welfare but adversely affecting property rights is involved. While subject to be assailed on due process, equal protection and non-impairment grounds, all that is required to avoid the corrosion of invalidity is that the rational basis or reasonableness test is satisfied. The legislature on the whole is not likely to allow an enactment suffering, to paraphrase Cardozo, from the infirmity of out running the bounds of reason and resulting in sheer oppression. It may be of course that if challenged, an adverse judgment could be the result, as its running counter to the Constitution could still be shown. In the meanwhile though, in the normal course of things, it has been acted upon by the public and accepted as valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual situation, never static but subject to change, a measure valid when enacted may subsequently, due to altered circumstances, be stricken down. That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued by the then President Osmea, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it was explicitly held in Rutter v. Esteban 8 where such enactment was considered in 1953 "unreasonable and oppressive, and should not be prolonged a

FERNANDO, J.: A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now appellee, was able to obtain a favorable judgment in her suit against defendant, now appellant Philippine National Bank, permanently enjoining the other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer enforceable, the prescriptive period having lapsed. There was thus a failure to sustain the defense raised by appellant that if the moratorium under an Executive Order and later an Act subsequently found unconstitutional were to be counted in the computation, then the right to foreclose the mortgage was still subsisting. In arriving at such a conclusion, the lower court manifested a tenacious adherence to the inflexible view that an unconstitutional act is not a law, creating no rights and imposing no duties, and thus as inoperative as if it had never been. It was oblivious to the force of the principle adopted by this Court that while a statute's repugnancy to the fundamental law deprives it of its character as a juridical norm, its having been operative prior to its being nullified is a fact that is not devoid of legal consequences. As will hereafter be explained, such a failing of the lower court resulted in an erroneous decision. We find for appellant Philippine National Bank, and we reverse. There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage duly registered covering property described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13 of the same year, defendant instituted extra-judicial foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the loan remaining unpaid. Plaintiff countered with his suit against both defendants on August 10, 1959, her main allegation being that the mortgage sought to be foreclosed had long prescribed, fifteen years having elapsed from the date of maturity, July 19, 1944. She sought and was able to obtain a writ of preliminary injunction against defendant Provincial Sheriff, which was made permanent in the decision now on appeal. Defendant Bank in its answer prayed for the dismissal of the suit as even on plaintiff's own theory the defense of prescription would not be available if the period from March 10, 1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the subsequent legislative act 2 extending the period of moratorium was declared invalid, were to be deducted from the computation of the time during which the bank took no legal steps for the recovery of the loan. As noted, the lower court did not find such contention persuasive and decided the suit in favor of plaintiff. Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the part of the lower court to adhere to the applicable constitutional doctrine as to the effect to be given to a statute subsequently declared invalid.

minute longer, and, therefore, the same should be declared null and void and without effect." 9 At the time of the issuance of the above Executive Order in 1945 and of the passage of such Act in 1948, there was a factual justification for the moratorium. The Philippines was confronted with an emergency of impressive magnitude at the time of her liberation from the Japanese military forces in 1945. Business was at a standstill. Her economy lay prostrate. Measures, radical measures, were then devised to tide her over until some semblance of normalcy could be restored and an improvement in her economy noted. No wonder then that the suspension of enforcement of payment of the obligations then existing was declared first by executive order and then by legislation. The Supreme Court was right therefore in rejecting the contention that on its face, the Moratorium Law was unconstitutional, amounting as it did to the impairment of the obligation of contracts. Considering the circumstances confronting the legitimate government upon its return to the Philippines, some such remedial device was needed and badly so. An unyielding insistence then on the rights to property on the part of the creditors was not likely to meet with judicial sympathy. Time passed however, and conditions did change. When the legislation was before this Court in 1953, the question before it was its satisfying the rational basis test, not as of the time of its enactment but as of such date. Clearly, if then it were found unreasonable, the right to non-impairment of contractual obligations must prevail over the assertion of community power to remedy an existing evil. The Supreme Court was convinced that such indeed was the case. As stated in the opinion of Justice Bautista Angelo: "But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could affect a liquidation of their investment dating as far back as 1941. This period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under the law the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States. 10 The conclusion to which the foregoing considerations inevitably led was that as of the time of adjudication, it was apparent that Republic Act No. 342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified. That before the decision they were not constitutionally infirm was admitted expressly. There is all the more reason then to yield assent to the now prevailing principle that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. 3. Precisely though because of the judicial recognition that moratorium was a valid governmental response to the plight of the debtors who were war sufferers, this Court has made clear its view in a series of cases impressive in their number and unanimity that during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. So it has been held from Day v. Court of First Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is deplorable is that as of the time of the lower court decision on January 27, 1960, at least eight decisions had left no doubt as to the prescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. 13 Speaking of the opposite view entertained by the lower court, the present Chief Justice, in Liboro v. Finance and Mining Investments Corp . 14 has categorized it as having been "explicitly and consistently rejected by this Court." 15 The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when her loan matured, to July 13,

1959, when extra-judicial foreclosure proceedings were started by appellant Bank, the time consumed is six days short of fifteen years. The prescriptive period was tolled however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then, when resort was had extra-judicially to the foreclosure of the mortgage obligation, there was time to spare before prescription could be availed of as a defense. WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10, 1959 dismissed. No costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 85481-82 October 18, 1990 WILLIAM TAN, JOAQUIN TAN LEH and VICENTE TAN, petitioners, vs. HERNANI T. BARRIOS, in his capacity as State Prosecutor, Department of Justice, THE CITY FISCAL OF CAGAYAN DE ORO CITY, THE HONORABLE LEONARDO N. DEMECILLO, Presiding Judge of the Regional Trial Court, Branch 24, Cagayan De Oro City, and THE PEOPLE OF THE PHILIPPINES, respondents.

GRIO-AQUINO, J.: On the basis of Proclamation No. 1081 dated September 21, 1972, then President Ferdinand E. Marcos, thru General Order No. 8 dated September 27, 1972, authorized the AFP Chief of Staff to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them." In General Order No. 21 dated September 30, 1972, the military tribunals, "exclusive of the civil courts," were vested with jurisdiction among others, over violations of the law on firearms, and other crimes which were directly related to the quelling of rebellion and the preservation of the safety and security of the Republic. In General Order No. 12-b dated November 7, 1972, "crimes against persons . . . as defined and penalized in the Revised Penal Code" were added to the jurisdiction of military tribunals/commissions. Subsequently, General Order No. 49, dated October 11, 1974, redefined the jurisdiction of the Military Tribunals. The enumeration of offenses cognizable by such tribunals excluded crimes against persons as defined and penalized in the Revised Penal Code. However, although civil courts should have exclusive jurisdiction over such offenses not mentioned in Section 1 of G.O. No. 49, Section 2 of the same general order provided that "the President may, in the public interest, refer to a Military Tribunal a case falling under the exclusive jurisdiction of the civil courts" and vice versa. On April 17, 1975, the three petitioners, with twelve (12) others, were arrested and charged in Criminal Case No. MC-1-67 entitled, "People of the Philippines vs. Luis Tan alias Tata alias Go Bon Hoc, et al." before the Military Commission No. 1, for the crimes of: (1) murder through the use of an unlicensed or illegally possessed firearm, penalized under Article 248 of the Revised Penal Code, in

relation to Section 1, par. 6 of General Order No. 49, for the killing on August 25, 1973 of Florentino Lim of tile wealthy Lim Ket Kai family of Cagayan de Oro City; and (2) unlawful possession, control, and custody of a pistol, caliber .45 SN-1283521 with ammunition, in violation of General Orders Nos. 6 and 7 in relation to Presidential Decree No. 9. The accused were: 1. Luis Tan alias Tata alias Go Bon Hoc 2. Ang Tiat Chuan alias Chuana 3. Mariano Velez, Jr. 4. Antonio Occaciones 5. Leopoldo Nicolas 6. Enrique Labita 7. Oscar Yaun 8. Joaquin Tan Leh alias Go Bon Huat alias Taowie 9. Eusebio Tan alias Go Bon Ping 10. Vicente Tan alias Go Bon Beng alias Donge 11. Alfonso Tan alias Go Bon Tiak 12. Go E Kuan alias Kunga 13. William Tan alias Go Bon Ho 14. Marciano Benemerito alias Marcing alias Dodong 15. Manuel Beleta, and 16. John Doe (Annex A, Petition). (Names italicized are the petitioners herein.) Because the case was a "cause celebre" in Cagayan de Oro City, President Marcos, pursuant to the recommendation of Defense Secretary Juan Ponce Enrile, withdrew his earlier order (issued in response to the requests of the defendants' lawyers) to transfer the case to the civil courts. Hence, the case was retained in the military court (Annexes A to C of Supplemental/Amended Petition, pp. 7288, Rollo). All the accused were detained without bail in the P.C. Stockade in Camp Crame. Upon arraignment on May 6, 1975, all the accused pleaded "not guilty." Manuel Beleta was discharged to be used as a state witness. He was released from detention on May 5, 1975 (p. 4, Rollo). Almost daily trials were held for more than thirteen (13) months. The testimonies of 45 prosecution witnesses and 35 defense witnesses filled up twenty-one (21) volumes of transcripts consisting of over 10,000 pages (p. 75, Rollo).

On June 10, 1976, a decision entitled "Findings and Sentence," was promulgated by the Military Commission finding five (5) of the accused namely: 1. Luis Tan 2. Ang Tiat Chuan 3. Mariano Velez, Jr. 4. Antonio Occaciones, and 5. Leopoldo Nicolas guilty of MURDER. Each of them was sentenced to suffer an indeterminate prison term of from seventeen (17) years, four (4) months, and twenty-one (21) days, to twenty (20) years. A sixth accused, Marciano Benemerito, was found guilty of both MURDER and ILLEGAL POSSESSION OF FIREARM, and was sentenced to suffer the penalty of death by electrocution (Annex B, Petition). Eight (8) of the accused, namely: 1. Oscar Yaun 2. Enrique Labita 3. Eusebio Tan 4. Alfonso Tan 5. Go E Kuan 6. William Tan (petitioner herein) 7. Joaquin Tan Leh (petitioner herein) and 8. Vicente Tan (petitioner herein) were acquitted of the charges, and released on June 11, 1976 (p. 8, Rollo). On January 17, 1981, Proclamation No. 2045 ended martial rule and abolished the military tribunals and commissions. On May 22, 1987, this Court promulgated a decision in Olaguer vs. Military Commission No. 34, et al . (150 SCRA 144), vacating the sentence rendered on December 4, 1984 by Military Commission No. 34 against Olaguer, et al. and declaring that military commissions and tribunals have no jurisdiction, even during the period of martial law, over civilians charged with criminal offenses properly cognizable by civil courts, as long as those courts are open and functioning as they did during the period of martial law. This Court declared unconstitutional the creation of the military commissions to try civilians, and annulled all their proceedings as follows: Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty), the accused shall be entitled to, among others, a trial. The trial contemplated by the due

process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process, Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system. ... xxx xxx xxx Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander in-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives. Following the principle of separation of powers underlying the existing constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws (as when an individual should be considered to have violated the law) is primarily a function of the judiciary. It is not, and it cannot be the function of the Executive Department, through the military authorities. And as long as the civil courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the constitutional right to due process of the civilian concerned. (Olaguer, et al. vs. Military Commission No. 34, 150 SCRA 144, 158160.) In October 1986, several months after the EDSA revolution, six (6) habeas corpus petitions were filed in this Court by some 217 prisoners 1 in the national penitentiary, who had been tried for common crimes and convicted by the military commissions during the nine-year span of official martial rule (G.R. Nos. 75983, 79077, 79599-79600, 79862 and 80565 consolidated and entitled Manuel R. Cruz, et al. vs. Minister Juan Ponce Enrile, et al. , 160 SCRA 700). The petitioners asked the Court to declare unconstitutional General Order No. 8 creating the military tribunals, annul the proceedings against them before these bodies, and grant them a retrial in the civil courts where their right to due process may be accorded respect. Conformably with the ruling in Olaguer, this Court in Cruz vs. Enrile (160 SCRA 700), nullified the proceedings leading to the conviction of non-political detainees who should have been brought before the courts of justice as their offenses were totally unrelated to the insurgency sought to be controlled by martial rule. The Court (1) granted the petition for habeas corpus and ordered the release of those of some who had fully served their sentences, or had been acquitted, or had been granted amnesty; (2) dismissed the petitions of those who were military personnel; and (3) nullified the proceedings against those who were convicted and still serving the sentences meted to them by the military courts, but, without ordering their release, directed the Department of Justice to

file the necessary informations against them in the proper civil courts. The dispositive part of the decision reads: Wherefore the petition is hereby GRANTED insofar as petitioners Virgilio Alejandrino, 2 Domingo Reyes, Antonio Pumar, Teodoro Patono, Andres Parado, Daniel Campus, 3 Reynaldo C. Reyes and Rosalino de los Santos, 4 are concerned. The Director of the Bureau of Prisons is hereby ordered to effect the immediate release of the abovementioned petitioners, unless there are other legal causes that may warrant their detention. The petition is DISMISSED as to petitioners Elpidio Cacho, William Lorenzana, Benigno Bantolino, Getulio G. Braga, Jr., Tomas C. Amarte, Rogelio L. Caricungan, Ernesto Baradiel, Isabelo Narne, Eric F. Pichay, Pablo Callejo, Russel A. Paulino, Laurel Lamaca, Tirso F. Bala, Calixto Somera, Edulino Lacsina (Draftee), Ronnie A. Celiz, Elpidio Urbano, Sofronio Galo, Aquilino Leyran, Leopoldo Arcadio, Rolando Tudin Rosendo I. Ramos Pacifico Batacan, Edilberto Liberato, Jimmy C. Realis. Democrito Lorana who are all military personnel. As to the other petitioners, the Department of Justice is hereby DIRECTED TO FILE the necessary informations against them in the courts having jurisdiction over the offenses involved, within one hundred eighty (180) days from notice of this decision, without prejudice to the reproduction of the evidence submitted by the parties and admitted by the Military Commission. If eventually convicted, the period of the petitioners' detention shall be credited in their favor. The Courts wherein the necessary informations are filed are DIRECTED TO CONDUCT with dispatch the necessary proceedings inclusive of those for the grant of bail which may be initiated by the accused. (Cruz, et al. vs. Enrile, et al., 160 SCRA 700, 711-712.) On September 15, 1988, Secretary of Justice Sedfrey Ordoez issued Department Order No. 226 designating State Prosecutor Hernani Barrios "to collaborate with the City Fiscal of Cagayan de Oro City in the investigation/reinvestigation of Criminal Case No. MC-1-67 and, if the evidence warrants, to prosecute the case in the court of competent jurisdiction" (Annex C, Petition). On November 15, 1988, State Prosecutor Barrios was designated Acting City Fiscal of Cagayan de Oro City in hell of the regular fiscal who inhibited himself (p. 66, Rollo). Without conducting an investigation/reinvestigation, Fiscal Barrios filed on December 9, 1988, in the Regional Trial Court of Cagayan de Oro City two (2) informations for: 1. Illegal Possession of Firearm docketed as Crim. Case No. 88824; and 2. Murder docketed as Crim. Case No. 88-825 against all the 15 original defendants in Criminal Case No. MC-1-67 including those who had already died 5 (Annexes D and E, Petition) The State Prosecutor incorrectly certified in the informations that:

this case is filed in accordance with the Supreme Court Order in the case of Cruz, et al. vs. Ponce Enrile in G.R. Nos. 75983, 79077, 79599, 79600, 79862 and 80565 as all accused are detained 6 except those that are already dead. (p. 7, Rollo.) He recommended bail of P50,000 for each of the accused in the two cases (p. 8, Rollo). Later, he increased the recommended bail to P140,000 for each accused in the firearm case (Crim. Case No. 88824). In the murder case (Crim. Case No. 88-825), he recommended that the bail be increased to P250,000 for each of the accused, except Luis Tan, Ang Tiat Chuan, and Mariano Velez, Jr., for whom he recommended no bail. Still later, on October 28, 1988, he recommended no bail for all the accused (pp. 8-9, Rollo) because of the presence of two aggravating circumstances; (1) prize or reward; and (2) use of a motor vehicle (p. 65, Rollo). Criminal Cases Nos. 88-824 and 88-825 of the RTC, Cagayan de Oro City, were assigned by raffle to the sala of RTC Judge Leonardo N. Demecillo. Before issuing warrants for the arrest of the accused, Judge Demecillo issued an order on October 26, 1988, requiring State Prosecutor Barrios to submit certified copies of "the supporting affidavits of the previous cases wherever they are now," and of the Supreme Court order "which is the basis of filing the above-entitled cases, within five (5) days from receipt" of his said order (Annex F, Petition). The State Prosecutor has not complied with that order for, as a matter of fact, there is no Supreme Court order to re-file the criminal cases against the herein petitioners and their twelve (12) coaccused in Crim. Case No. MC-1-67 of the now defunct Military Commission No. 1, because none of them, except Antonio Occaciones, were parties in the Cruz vs. Enrile habeas corpus cases (160 SCRA 700). On November 7, 1988, William Tan, Joaquin Tan Leh and Vicente Tan filed this petition for certiorari and prohibition praying that the informations in Crim. Cases Nos. 88-824 and 88-825, and the order of respondent Judge dated October 26, 1988 be annulled, and that the public respondents or any other prosecution officer "be permanently enjoined from indicting, prosecuting and trying them anew for the offenses charged therein because they had already been acquitted of the same by Military Commission No. 1 in Crim. Case No. MC-1-67" (p. 23, Rollo). On November 23, 1988, the First Division of this Court dismissed the petition for being premature as: ... the petitioners have not yet filed a motion to quash the allegedly invalid informations in Criminal Cases Nos. 88-824 and 88825 (Annexes D and E) whose annulment they seek from this Court (Sec. 3, Rule 117, 1985 Rules on Criminal Procedure). The filing in the lower court of such motion is the plain, speedy and adequate remedy of the petitioners. The existence of that remedy (which they have not yet availed of) bars their recourse to the special civil actions of certiorari and prohibition in this Court (Sec. 1, Rule 65, Rules of Court (p. 41, Rollo.) Upon the petitioners' filing a motion for reconsideration informing this Court that the lower court had issued warrants for their arrest (p. 48, Rollo), we issued a temporary restraining order on January 16, 1989 enjoining the respondents from implementing the orders of arrest and ordering them to comment on the petition (p. 50, Rollo). The petitioners allege that State Prosecutor Barrios exceeded his jurisdiction and gravely abused his discretion in reprosecuting them

upon the supposed authority of Cruz vs. Enrile for the following reasons: 1. The decision in Cruz vs. Enrile does not in fact direct the filing of informations by the Secretary of Justice against THOSE who, like the petitioners, WERE ACQUITTED after court martial proceedings during the period of martial law. 2. The decision in Cruz vs. Enrile does not apply to the petitioners who were not parties in that case, who were not heard, and over whom the court did not acquire jurisdiction. 3. The reprosecution of the petitioners would violate their right to protection against double jeopardy. 4. The State is estopped from reprosecuting the petitioners after they had been acquitted by the military tribunal which the State itself had clothed with jurisdiction to try and decide the criminal cases against them. The State may not retroactively divest of jurisdiction the military tribunal that tried and acquitted them (pp. 14-15, Petition). 5. The retroactive invalidation of the jurisdiction of the military court that acquitted the petitioners would amount to an ex post facto ruling (p. 81, Rollo, Supplemental Petition). 6. The information against the petitioners in Crim. Case No. 88-825 is null and void because it was filed without a prior preliminary investigation, nor a finding of probable cause, nor the written approval of the Chief State Prosecutor (Secs. 3 and 4, Rule 112, 1985 Rules on Criminal Procedure). In his Comment dated February 1, 1985 (should be 1989), Fiscal Barrios disclosed that the information in Criminal Case No. 88-824 for illegal possession of firearm was "already withdrawn by the prosecution at a hearing on January 27, 1988" (should be 1989?) (pp. 66-68, Rollo). The reason for dropping the charge is not stated. It may be because Benemerito, the gunman who was convicted of this felony and sentenced to death by the Military Commission, is already dead-possibly executed. Hence, only the information for murder (Crim. Case No. 88-825) against the petitioners and twelve (12) others, including those already dead, is pending in the lower court (p. 37, Rollo). He defended the reprosecution of the petitioners on the ground that it will not constitute double jeopardy because the nullity of the jurisdiction of the military tribunal that acquitted them prevented the first jeopardy from attaching, thereby nullifying their acquittal. For the same reason, res judicata is not applicable. Neither prescription, because "it had been interrupted by the filing of the earlier charge sheets with the Military Commission" (p. 67, Rollo). The Solicitor General, in his separate comment, argued that the proceedings involving civilians before a military commission were null and void because we ruled in Olaguer that military tribunals are bereft of jurisdiction over civilians, hence, their decisions, whether of conviction or acquittal, do not bar re-prosecution for the same crime before a civil court (p. 102, Rollo). The petition is meritorious. The public respondents gravely abused their discretion and acted without or in excess of their jurisdiction in misconstruing the third paragraph of the dispositive portion of this Court's decision in Cruz vs. Enrile as their authority to refile in the civil court the criminal actions against petitioners who had been tried and acquitted by Military Commission No. 1 during the period of martial law. It is an unreasonable application of Cruz vs. Enrile, for the decision therein will be searched in vain for such authority to reprosecute every civilian who had ever faced a court martial, much less those who had been acquitted by such bodies more than a decade ago like the petitioners Tan, et al. herein.

The decision in Cruz vs. Enrile would be an instrument of oppression and injustice unless given a limited application only to the parties/petitioners therein who sought the annulment of the court martial proceedings against themselves and prayed for a retrial in the civil courts of the criminal cases against them. They alone are affected by the judgment in Cruz vs. Enrile, not all and sundry who at one time or another had been tried and sentenced by a court martial during the period of martial law. Res inter alios judicatae nullum aliis praejudicium faciunt. "Matters adjudged in a cause do not prejudice those who were not parties to it." (54 C.J. 719.) It is a cardinal rule of procedure that a court's judgment or order in a case shall not adversely affect persons who were not parties to the self same case (Icasiano vs. Tan, 84 Phil. 860). Hence, this court's pronouncement in Cruz vs. Enrile nullifying the proceedings in military courts against the civilian petitioners therein and ordering the refiling of informations against them in the proper civil courts, may not affect the rights of persons who were not parties in that case and who, not having submitted to the court's jurisdiction, did not have their day in court (Busacay vs. Buenaventura, 94 Phil, 1033). Their reprosecution, based on the decision in Cruz vs. Enrile in which they took no part and were not heard, would be violative of their right to due process, the same right of the petitioners in Cruz vs. Enrile that this Court endeavored to protect when it nullified the proceedings against them in the military tribunals by applying the Olaguer doctrine that the trial of civilians by military process was not due process. 7 There is, however, a perceptible lack of consistency in the application of the Olaguer doctrine to Cruz vs. Enrile which needs to be rectified. For, although the Court nullified the proceedings against the civilians-petitioners who were still serving their sentences after conviction by the military courts and commissions, and we directed the Secretary of Justice to file the necessary informations against them in the proper civil courts, we did not nullify the court martial proceedings against the other civilians petitioners who: (1) had finished serving their sentences; (2) had been granted amnesty; or (3) had been acquitted by the military courts. We did not order their reprosecution, retrial, and resentencing by the proper civil courts. We set them free. In effect, the Court applied one rule for those civilians who were convicted by the military courts and were still serving their sentences, and another rule for those who were acquitted, or pardoned, or had finished the service of their sentences. The Court applied a rule of retroactive invalidity to the first group (whom the Court ordered to be reprosecuted before the proper civil courts) and another of prospective invalidity for the others (whom the Court ordered to be released from custody). In the interest of justice and consistency, we hold that Olaguer should, in principle, be applied prospectively only to future cases and cases still ongoing or not yet final when that decision was promulgated. Hence, there should be no retroactive nullification of final judgments, whether of conviction or acquittal, rendered by military courts against civilians before the promulgation of the Olaguer decision. Such final sentences should not be disturbed by the State. Only in particular cases where the convicted person or the State shows that there was serious denial of the Constitutional rights of the accused should the nullity of the sentence be declared and a retrial be ordered based on the violation of the constitutional rights of the accused, and not on the Olaguer doctrine. If a retrial, is no longer possible, the accused should be released since the judgment against him is null on account of the violation of his constitutional rights and denial of due process. It may be recalled that Olaguer was rescued from a court martial which sentenced him to death without receiving evidence in his defense. It would be a cruel distortion of the Olaguer decision to use it as authority for reprosecuting civilians regardless of whether, unlike Olaguer, they had been accorded a fair trial and regardless of whether they have already been acquitted and released, or have

accepted the sentences imposed on them and commenced serving the same. Not everybody who was convicted by a military court, much less those who were acquitted and released, desires to undergo the ordeal of a second trial for the same offense, albeit in a civil court. Indeed, why should one who has accepted the justness of the verdict of a military court, who is satisfied that he had a fair hearing, and who is willing to serve his sentence in full, be dragged through the harrow of another hearing in a civil court to risk being convicted a second time perchance to serve a heavier penalty? Even if there is a chance of being acquitted the second time around, it would be small comfort for the accused if he is held without bail pending the completion of his second trial which may take as long as, if not longer than, the sentence he has been serving or already served. The trial of thousands of civilians for common crimes before military tribunals and commissions during the ten-year period of martial rule (1971-1981) which were created under general orders issued by President Marcos in the exercise of his legislative powers, is an operative fact that may not be justly ignored. The belated declaration in 1987 of the unconstitutionality and invalidity of those proceedings did not erase the reality of their consequences which occurred long before our decision in Olaguer was promulgated and which now prevent us from carrying Olaguer to the limit of its logic. Thus, did this Court rule in Municipality of Malabang vs. Benito , 27 SCRA 533, where the question arose as to whether the declaration of nullity of the creation of a municipality by executive order wiped out all the acts of the local government thus abolished: In Norton vs. Shelby Count, Mr. Justice Field said: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' Accordingly, he held that bonds issued by a board of commissioners created under an invalid statute were unenforceable. Executive Order 386 'created no office.' This is not to say, however, that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the executive order is, in legal contemplation, as inoperative as though it had never been passed.' For the existence of Executive Order 386 is 'an operative fact which cannot justly be ignored.' As Chief Justice Hughes explained in Chicot County Drainage District vs. Baxter State Bank: 'The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton vs. Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. vs. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspectswith respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior

determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity, cannot be justified. There is then no basis for the respondents' apprehension that the invalidation of the executive order creating Balabagan would have the effect of unsettling many an act done in reliance upon the validity of the creation of that municipality. (Municipality of Malabang vs. Benito, 27 SCRA 533) The doctrine of "operative facts" applies to the proceedings against the petitioners and their co-accused before Military Commission No. 1. The principle of absolute invalidity of the jurisdiction of the military courts over civilians should not be allowed to obliterate the "operative facts" that in the particular case of the petitioners, the proceedings were fair, that there were no serious violations of their constitutional right to due process, and that the jurisdiction of the military commission that heard and decided the charges against them during the period of martial law, had been affirmed by this Court (Aquino vs. Military Commission No. 2, 63 SCRA 546) years before the Olaguer case arose and came before us. Because of these established operative facts, the refiling of the information against the petitioners would place them in double jeopardy, in hard fact if not in constitutional logic. The doctrine of double jeopardy protects the accused from harassment by the strong arm of the State: The constitutional mandate is (thus) a rule of finality. A single prosecution for any offense is all the law allows. It protects an accused from harassment, enables him to treat what had transpired as a closed chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is a bar to unnecessary litigation, in itself timeconsuming and expense-producing for the state as well. It has been referred to as 'res judicata in prison grey.' The ordeal of a criminal prosecution is inflicted only once, not whenever it pleases the state to do so. (Fernando, The Constitution of the Philippines, 2nd Ed., pp. 722-723.) Furthermore, depriving the petitioners of the protection of the judgment of acquittal rendered by the military commission in their particular case by retroactively divesting the military commission of the jurisdiction it had exercised over them would amount to an ex post facto law or ruling, again, in sharp reality if not in strict constitutional theory. An ex-post facto law or rule, is one which 1. makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; 2. aggravates a crime, or makes it greater than it was, when committed;

3. changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4. alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5. assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and, 6. deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (In re: Kay Villegas Kami, Inc., 35 SCRA 428, 431) Article IV, Section 22, of the 1987 Constitution prohibits the enactment of an ex post facto law or bill of attainder. We need not discuss the petitioners' final argument that the information against them is invalid because there was no preliminary investigation, no finding of probable cause by the investigating fiscal and no prior approval of the information by the City Fiscal before it was filed. WHEREFORE, the petition for certiorari and prohibition is granted. Respondent State Prosecutor and the Presiding Judge of the Regional Trial Court, Branch 24, at Cagayan de Oro City, are hereby ordered to discharge the petitioners from the information in Criminal Case No. 88-825. The temporary restraining order which we issued on January 16, 1989 is hereby made permanent. No costs. SO ORDERED. THIRD DIVISION [G.R. No. 166006, March 14, 2008] PLANTERS PRODUCTS, INC., Petitioner, vs. FERTIPHIL CORPORATION, Respondent. DECISION REYES, R.T., J.: THE Regional Trial Courts (RTC) have the authority and jurisdiction to consider the constitutionality of statutes, executive orders, presidential decrees and other issuances. The Constitution vests that power not only in the Supreme Court but in all Regional Trial Courts. The principle is relevant in this petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) affirming with modification that of the RTC in Makati City, [2] finding petitioner Planters Products, Inc. (PPI) liable to private respondent Fertiphil Corporation (Fertiphil) for the levies it paid under Letter of Instruction (LOI) No. 1465. The Facts Petitioner PPI and private respondent Fertiphil are private corporations incorporated under Philippine laws.[3] They are both engaged in the importation and distribution of fertilizers, pesticides and agricultural chemicals. On June 3, 1985, then President Ferdinand Marcos, exercising his legislative powers, issued LOI No. 1465 which provided, among others, for

the imposition of a capital recovery component (CRC) on the domestic sale of all grades of fertilizers in the Philippines.[4] The LOI provides: 3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines. [5] (Underscoring supplied) Pursuant to the LOI, Fertiphil paid P10 for every bag of fertilizer it sold in the domestic market to the Fertilizer and Pesticide Authority (FPA). FPA then remitted the amount collected to the Far East Bank and Trust Company, the depositary bank of PPI. Fertiphil paid P6,689,144 to FPA from July 8, 1985 to January 24, 1986. [6] After the 1986 Edsa Revolution, FPA voluntarily stopped the imposition of the P10 levy. With the return of democracy, Fertiphil demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede to the demand.[7] Fertiphil filed a complaint for collection and damages[8] against FPA and PPI with the RTC in Makati. It questioned the constitutionality of LOI No. 1465 for being unjust, unreasonable, oppressive, invalid and an unlawful imposition that amounted to a denial of due process of law. [9] Fertiphil alleged that the LOI solely favored PPI, a privately owned corporation, which used the proceeds to maintain its monopoly of the fertilizer industry. In its Answer,[10] FPA, through the Solicitor General, countered that the issuance of LOI No. 1465 was a valid exercise of the police power of the State in ensuring the stability of the fertilizer industry in the country. It also averred that Fertiphil did not sustain any damage from the LOI because the burden imposed by the levy fell on the ultimate consumer, not the seller. RTC Disposition On November 20, 1991, the RTC rendered judgment in favor of Fertiphil, disposing as follows: WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of the plaintiff and against the defendant Planters Product, Inc., ordering the latter to pay the former: 1) the sum of P6,698,144.00 with interest at 12% from the time of judicial demand; 2) the sum of P100,000 as attorneys fees; 3) the cost of suit. SO ORDERED.[11] Ruling that the imposition of the P10 CRC was an exercise of the States inherent power of taxation, the RTC invalidated the levy for violating the basic principle that taxes can only be levied for public purpose, viz.: It is apparent that the imposition of P10 per fertilizer bag sold in the country by LOI 1465 is purportedly in the exercise of the power of taxation. It is a settled principle that the power of taxation by the state is plenary. Comprehensive and supreme, the principal check upon its abuse resting in the responsibility of the members of the legislature to their constituents. However, there are two kinds of limitations on the power of taxation: the inherent limitations and the constitutional limitations. One of the inherent limitations is that a tax may be levied only for public purposes: The power to tax can be resorted to only for a constitutionally valid public purpose. By the same token, taxes may not be levied for purely private purposes, for building up of private fortunes, or for the redress of private wrongs. They cannot be levied for the improvement of private property, or for the benefit, and promotion of private enterprises, except where the aid is incident to the public benefit. It is well-settled principle of constitutional law that no general tax can be levied except for the purpose of raising money which is to be expended for public use. Funds cannot be exacted under the guise of taxation to promote a purpose that is not of public interest. Without such limitation, the power to tax could be exercised or

employed as an authority to destroy the economy of the people. A tax, however, is not held void on the ground of want of public interest unless the want of such interest is clear. (71 Am. Jur. pp. 371-372) In the case at bar, the plaintiff paid the amount of P6,698,144.00 to the Fertilizer and Pesticide Authority pursuant to the P10 per bag of fertilizer sold imposition under LOI 1465 which, in turn, remitted the amount to the defendant Planters Products, Inc. thru the latters depository bank, Far East Bank and Trust Co. Thus, by virtue of LOI 1465 the plaintiff, Fertiphil Corporation, which is a private domestic corporation, became poorer by the amount of P6,698,144.00 and the defendant, Planters Product, Inc., another private domestic corporation, became richer by the amount of P6,698,144.00. Tested by the standards of constitutionality as set forth in the afore-quoted jurisprudence, it is quite evident that LOI 1465 insofar as it imposes the amount of P10 per fertilizer bag sold in the country and orders that the said amount should go to the defendant Planters Product, Inc. is unlawful because it violates the mandate that a tax can be levied only for a public purpose and not to benefit, aid and promote a private enterprise such as Planters Product, Inc.[12] PPI moved for reconsideration but its motion was denied. [13] PPI then filed a notice of appeal with the RTC but it failed to pay the requisite appeal docket fee. In a separate but related proceeding, this Court [14] allowed the appeal of PPI and remanded the case to the CA for proper disposition. CA Decision On November 28, 2003, the CA handed down its decision affirming with modification that of the RTC, with the following fallo: IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby AFFIRMED, subject to the MODIFICATION that the award of attorneys fees is hereby DELETED.[15] In affirming the RTC decision, the CA ruled that the lis mota of the complaint for collection was the constitutionality of LOI No. 1465, thus: The question then is whether it was proper for the trial court to exercise its power to judicially determine the constitutionality of the subject statute in the instant case. As a rule, where the controversy can be settled on other grounds, the courts will not resolve the constitutionality of a law ( Lim v. Pacquing, 240 SCRA 649 [1995]). The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of political departments are valid, absent a clear and unmistakable showing to the contrary. However, the courts are not precluded from exercising such power when the following requisites are obtaining in a controversy before it: First, there must be before the court an actual case calling for the exercise of judicial review. Second, the question must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity; and lastly, the issue of constitutionality must be the very lis mota of the case ( Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 [2000]). Indisputably, the present case was primarily instituted for collection and damages. However, a perusal of the complaint also reveals that the instant action is founded on the claim that the levy imposed was an unlawful and unconstitutional special assessment. Consequently, the requisite that the constitutionality of the law in question be the very lis mota of the case is present, making it proper for the trial court to rule on the constitutionality of LOI 1465.[16] The CA held that even on the assumption that LOI No. 1465 was issued under the police power of the state, it is still unconstitutional because it did not promote public welfare. The CA explained: In declaring LOI 1465 unconstitutional, the trial court held that the levy imposed under the said law was an invalid exercise of the States power of taxation inasmuch as it violated the inherent and constitutional prescription that taxes be levied only for public purposes. It reasoned out that the amount collected under the levy was remitted to the depository bank of PPI, which the latter used to advance its private interest. On the other hand, appellant submits that the subject statutes passage was a valid exercise of police power. In addition, it disputes the court a quos findings arguing that the collections under LOI 1465 was for the benefit of Planters Foundation, Incorporated (PFI), a foundation created by

law to hold in trust for millions of farmers, the stock ownership of PPI. Of the three fundamental powers of the State, the exercise of police power has been characterized as the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs. It may be exercised as long as the activity or the property sought to be regulated has some relevance to public welfare (Constitutional Law, by Isagani A. Cruz, p. 38, 1995 Edition). Vast as the power is, however, it must be exercised within the limits set by the Constitution, which requires the concurrence of a lawful subject and a lawful method. Thus, our courts have laid down the test to determine the validity of a police measure as follows: (1) the interests of the public generally, as distinguished from those of a particular class, requires its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals (National Development Company v. Philippine Veterans Bank, 192 SCRA 257 [1990]). It is upon applying this established tests that We sustain the trial courts holding LOI 1465 unconstitutional. To be sure, ensuring the continued supply and distribution of fertilizer in the country is an undertaking imbued with public interest. However, the method by which LOI 1465 sought to achieve this is by no means a measure that will promote the public welfare. The governments commitment to support the successful rehabilitation and continued viability of PPI, a private corporation, is an unmistakable attempt to mask the subject statutes impartiality. There is no way to treat the self-interest of a favored entity, like PPI, as identical with the general interest of the countrys farmers or even the Filipino people in general. Well to stress, substantive due process exacts fairness and equal protection disallows distinction where none is needed. When a statutes public purpose is spoiled by private interest, the use of police power becomes a travesty which must be struck down for being an arbitrary exercise of government power. To rule in favor of appellant would contravene the general principle that revenues derived from taxes cannot be used for purely private purposes or for the exclusive benefit of private individuals.[17] The CA did not accept PPIs claim that the levy imposed under LOI No. 1465 was for the benefit of Planters Foundation, Inc., a foundation created to hold in trust the stock ownership of PPI. The CA stated: Appellant next claims that the collections under LOI 1465 was for the benefit of Planters Foundation, Incorporated (PFI), a foundation created by law to hold in trust for millions of farmers, the stock ownership of PFI on the strength of Letter of Undertaking (LOU) issued by then Prime Minister Cesar Virata on April 18, 1985 and affirmed by the Secretary of Justice in an Opinion dated October 12, 1987, to wit: 2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to include in its fertilizer pricing formula a capital recovery component, the proceeds of which will be used initially for the purpose of funding the unpaid portion of the outstanding capital stock of Planters presently held in trust by Planters Foundation, Inc. (Planters Foundation), which unpaid capital is estimated at approximately P206 million (subject to validation by Planters and Planters Foundation) (such unpaid portion of the outstanding capital stock of Planters being hereafter referred to as the Unpaid Capital), and subsequently for such capital increases as may be required for the continuing viability of Planters. The capital recovery component shall be in the minimum amount of P10 per bag, which will be added to the price of all domestic sales of fertilizer in the Philippines by any importer and/or fertilizer mother company. In this connection, the Republic hereby acknowledges that the advances by Planters to Planters Foundation which were applied to the payment of the Planters shares now held in trust by Planters Foundation, have been assigned to, among others, the Creditors. Accordingly, the Republic, through FPA, hereby agrees to deposit the proceeds of the capital recovery component in the special trust account designated in the notice dated April 2, 1985, addressed by counsel for the Creditors to Planters Foundation. Such proceeds shall be deposited by FPA on or before the 15th day of each month. The capital recovery component shall continue to be charged and collected until payment in full of (a) the Unpaid Capital and/or (b) any shortfall in the payment of the Subsidy Receivables, (c) any carrying cost accruing from the date hereof on the amounts which may be outstanding from time to time of the Unpaid Capital and/or the Subsidy Receivables and (d) the

capital increases contemplated in paragraph 2 hereof. For the purpose of the foregoing clause (c), the carrying cost shall be at such rate as will represent the full and reasonable cost to Planters of servicing its debts, taking into account both its peso and foreign currency-denominated obligations. (Records, pp. 42-43) Appellants proposition is open to question, to say the least. The LOU issued by then Prime Minister Virata taken together with the Justice Secretarys Opinion does not preponderantly demonstrate that the collections made were held in trust in favor of millions of farmers. Unfortunately for appellant, in the absence of sufficient evidence to establish its claims, this Court is constrained to rely on what is explicitly provided in LOI 1465 that one of the primary aims in imposing the levy is to support the successful rehabilitation and continued viability of PPI.[18] PPI moved for reconsideration but its motion was denied. [19] It then filed the present petition with this Court. Issues Petitioner PPI raises four issues for Our consideration, viz.: I THE CONSTITUTIONALITY OF LOI 1465 CANNOT BE COLLATERALLY ATTACKED AND BE DECREED VIA A DEFAULT JUDGMENT IN A CASE FILED FOR COLLECTION AND DAMAGES WHERE THE ISSUE OF CONSTITUTIONALITY IS NOT THE VERY LIS MOTA OF THE CASE. NEITHER CAN LOI 1465 BE CHALLENGED BY ANY PERSON OR ENTITY WHICH HAS NO STANDING TO DO SO. II LOI 1465, BEING A LAW IMPLEMENTED FOR THE PURPOSE OF ASSURING THE FERTILIZER SUPPLY AND DISTRIBUTION IN THE COUNTRY, AND FOR BENEFITING A FOUNDATION CREATED BY LAW TO HOLD IN TRUST FOR MILLIONS OF FARMERS THEIR STOCK OWNERSHIP IN PPI CONSTITUTES A VALID LEGISLATION PURSUANT TO THE EXERCISE OF TAXATION AND POLICE POWER FOR PUBLIC PURPOSES. III THE AMOUNT COLLECTED UNDER THE CAPITAL RECOVERY COMPONENT WAS REMITTED TO THE GOVERNMENT, AND BECAME GOVERNMENT FUNDS PURSUANT TO AN EFFECTIVE AND VALIDLY ENACTED LAW WHICH IMPOSED DUTIES AND CONFERRED RIGHTS BY VIRTUE OF THE PRINCIPLE OF OPERATIVE FACT PRIOR TO ANY DECLARATION OF UNCONSTITUTIONALITY OF LOI 1465. IV THE PRINCIPLE OF UNJUST VEXATION (SHOULD BE ENRICHMENT) FINDS NO APPLICATION IN THE INSTANT CASE. [20] (Underscoring supplied)

Our Ruling We shall first tackle the procedural issues of locus standi and the jurisdiction of the RTC to resolve constitutional issues. Fertiphil has locus standi because it suffered direct injury; doctrine of standing is a mere procedural technicality which may be waived. PPI argues that Fertiphil has no locus standi to question the constitutionality of LOI No. 1465 because it does not have a personal and substantial interest in the case or will sustain direct injury as a result of its enforcement.[21] It asserts that Fertiphil did not suffer any damage from the CRC imposition because incidence of the levy fell on the ultimate consumer or the farmers themselves, not on the seller fertilizer company.[22]

We cannot agree. The doctrine of locus standi or the right of appearance in a court of justice has been adequately discussed by this Court in a catena of cases. Succinctly put, the doctrine requires a litigant to have a material interest in the outcome of a case. In private suits, locus standi requires a litigant to be a real party in interest, which is defined as the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.[23] In public suits, this Court recognizes the difficulty of applying the doctrine especially when plaintiff asserts a public right on behalf of the general public because of conflicting public policy issues. [24] On one end, there is the right of the ordinary citizen to petition the courts to be freed from unlawful government intrusion and illegal official action. At the other end, there is the public policy precluding excessive judicial interference in official acts, which may unnecessarily hinder the delivery of basic public services. In this jurisdiction, We have adopted the direct injury test to determine locus standi in public suits. In People v. Vera,[25] it was held that a person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The direct injury test in public suits is similar to the real party in interest rule for private suits under Section 2, Rule 3 of the 1997 Rules of Civil Procedure.[26] Recognizing that a strict application of the direct injury test may hamper public interest, this Court relaxed the requirement in cases of transcendental importance or with far reaching implications. Being a mere procedural technicality, it has also been held that locus standi may be waived in the public interest.[27] Whether or not the complaint for collection is characterized as a private or public suit, Fertiphil has locus standi to file it. Fertiphil suffered a direct injury from the enforcement of LOI No. 1465. It was required, and it did pay, the P10 levy imposed for every bag of fertilizer sold on the domestic market. It may be true that Fertiphil has passed some or all of the levy to the ultimate consumer, but that does not disqualify it from attacking the constitutionality of the LOI or from seeking a refund. As seller, it bore the ultimate burden of paying the levy. It faced the possibility of severe sanctions for failure to pay the levy. The fact of payment is sufficient injury to Fertiphil. Moreover, Fertiphil suffered harm from the enforcement of the LOI because it was compelled to factor in its product the levy. The levy certainly rendered the fertilizer products of Fertiphil and other domestic sellers much more expensive. The harm to their business consists not only in fewer clients because of the increased price, but also in adopting alternative corporate strategies to meet the demands of LOI No. 1465. Fertiphil and other fertilizer sellers may have shouldered all or part of the levy just to be competitive in the market. The harm occasioned on the business of Fertiphil is sufficient injury for purposes of locus standi. Even assuming arguendo that there is no direct injury, We find that the liberal policy consistently adopted by this Court on locus standi must apply. The issues raised by Fertiphil are of paramount public importance. It involves not only the constitutionality of a tax law but, more importantly, the use of taxes for public purpose. Former President Marcos issued LOI No. 1465 with the intention of rehabilitating an ailing private company. This is clear from the text of the LOI. PPI is expressly named in the LOI as the direct beneficiary of the levy. Worse, the levy was made dependent and conditional upon PPI becoming financially viable. The LOI provided that the capital contribution shall be collected until adequate capital is raised to make PPI viable. The constitutionality of the levy is already in doubt on a plain reading of the statute. It is Our constitutional duty to squarely resolve the issue as the final arbiter of all justiciable controversies. The doctrine of standing, being a mere procedural technicality, should be waived, if at all, to adequately thresh out an important constitutional issue. RTC may resolve constitutional issues; the constitutional issue was adequately raised in the complaint; it is the lis mota of the case.

PPI insists that the RTC and the CA erred in ruling on the constitutionality of the LOI. It asserts that the constitutionality of the LOI cannot be collaterally attacked in a complaint for collection.[28] Alternatively, the resolution of the constitutional issue is not necessary for a determination of the complaint for collection.[29] Fertiphil counters that the constitutionality of the LOI was adequately pleaded in its complaint. It claims that the constitutionality of LOI No. 1465 is the very lis mota of the case because the trial court cannot determine its claim without resolving the issue.[30] It is settled that the RTC has jurisdiction to resolve the constitutionality of a statute, presidential decree or an executive order. This is clear from Section 5, Article VIII of the 1987 Constitution, which provides: SECTION 5. The Supreme Court shall have the following powers: x x x x

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Underscoring supplied) In Mirasol v. Court of Appeals, [31] this Court recognized the power of the RTC to resolve constitutional issues, thus: On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the constitutionality of a statute, presidential decree, or executive order. The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all Regional Trial Courts.[32] In the recent case of Equi-Asia Placement, Inc. v. Department of Foreign Affairs,[33] this Court reiterated: There is no denying that regular courts have jurisdiction over cases involving the validity or constitutionality of a rule or regulation issued by administrative agencies. Such jurisdiction, however, is not limited to the Court of Appeals or to this Court alone for even the regional trial courts can take cognizance of actions assailing a specific rule or set of rules promulgated by administrative bodies. Indeed, the Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts.[34] Judicial review of official acts on the ground of unconstitutionality may be sought or availed of through any of the actions cognizable by courts of justice, not necessarily in a suit for declaratory relief. Such review may be had in criminal actions, as in People v. Ferrer[35] involving the constitutionality of the now defunct Anti-Subversion law, or in ordinary actions, as in Krivenko v. Register of Deeds [36] involving the constitutionality of laws prohibiting aliens from acquiring public lands. The constitutional issue, however, (a) must be properly raised and presented in the case, and (b) its resolution is necessary to a determination of the case, i.e., the issue of constitutionality must be the very lis mota presented.[37] Contrary to PPIs claim, the constitutionality of LOI No. 1465 was properly and adequately raised in the complaint for collection filed with the RTC. The pertinent portions of the complaint allege: 6. The CRC of P10 per bag levied under LOI 1465 on domestic sales of all grades of fertilizer in the Philippines, is unlawful, unjust, uncalled for, unreasonable, inequitable and oppressive because: xxxx (c) It favors only one private domestic corporation, i.e., defendant PPPI, and imposed at the expense and disadvantage of the other fertilizer importers/distributors who were themselves in tight business situation and were then exerting all efforts and maximizing management and marketing skills to remain viable; xxxx (e) It was a glaring example of crony capitalism, a forced program through which the PPI, having been presumptuously masqueraded as the fertilizer industry itself, was the sole and anointed beneficiary;

7.

The CRC was an unlawful; and unconstitutional special assessment and its imposition is tantamount to illegal exaction amounting to a denial of due process since the persons of entities which had to bear the burden of paying the CRC derived no benefit therefrom; that on the contrary it was used by PPI in trying to regain its former despicable monopoly of the fertilizer industry to the detriment of other distributors and importers. [38] (Underscoring supplied)

The constitutionality of LOI No. 1465 is also the very lis mota of the complaint for collection. Fertiphil filed the complaint to compel PPI to refund the levies paid under the statute on the ground that the law imposing the levy is unconstitutional. The thesis is that an unconstitutional law is void. It has no legal effect. Being void, Fertiphil had no legal obligation to pay the levy. Necessarily, all levies duly paid pursuant to an unconstitutional law should be refunded under the civil code principle against unjust enrichment. The refund is a mere consequence of the law being declared unconstitutional. The RTC surely cannot order PPI to refund Fertiphil if it does not declare the LOI unconstitutional. It is the unconstitutionality of the LOI which triggers the refund. The issue of constitutionality is the very lis mota of the complaint with the RTC. The P10 levy under LOI No. 1465 is an exercise of the power of taxation. At any rate, the Court holds that the RTC and the CA did not err in ruling against the constitutionality of the LOI. PPI insists that LOI No. 1465 is a valid exercise either of the police power or the power of taxation. It claims that the LOI was implemented for the purpose of assuring the fertilizer supply and distribution in the country and for benefiting a foundation created by law to hold in trust for millions of farmers their stock ownership in PPI. Fertiphil counters that the LOI is unconstitutional because it was enacted to give benefit to a private company. The levy was imposed to pay the corporate debt of PPI. Fertiphil also argues that, even if the LOI is enacted under the police power, it is still unconstitutional because it did not promote the general welfare of the people or public interest. Police power and the power of taxation are inherent powers of the State. These powers are distinct and have different tests for validity. Police power is the power of the State to enact legislation that may interfere with personal liberty or property in order to promote the general welfare,[39] while the power of taxation is the power to levy taxes to be used for public purpose. The main purpose of police power is the regulation of a behavior or conduct, while taxation is revenue generation. The lawful subjects and lawful means tests are used to determine the validity of a law enacted under the police power.[40] The power of taxation, on the other hand, is circumscribed by inherent and constitutional limitations. We agree with the RTC that the imposition of the levy was an exercise by the State of its taxation power. While it is true that the power of taxation can be used as an implement of police power,[41] the primary purpose of the levy is revenue generation. If the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called a tax.[42] In Philippine Airlines, Inc. v. Edu,[43] it was held that the imposition of a vehicle registration fee is not an exercise by the State of its police power, but of its taxation power, thus: It is clear from the provisions of Section 73 of Commonwealth Act 123 and Section 61 of the Land Transportation and Traffic Code that the legislative intent and purpose behind the law requiring owners of vehicles to pay for their registration is mainly to raise funds for the construction and maintenance of highways and to a much lesser degree, pay for the operating expenses of the administering agency. x x x Fees may be properly regarded as taxes even though they also serve as an instrument of regulation. Taxation may be made the implement of the state's police power ( Lutz v. Araneta, 98 Phil. 148). If the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called a tax. Such is the case of motor vehicle registration fees.

The same provision appears as Section 59(b) in the Land Transportation Code. It is patent therefrom that the legislators had in mind a regulatory tax as the law refers to the imposition on the registration, operation or ownership of a motor vehicle as a tax or fee. x x x Simply put, if the exaction under Rep. Act 4136 were merely a regulatory fee, the imposition in Rep. Act 5448 need not be an additional tax. Rep. Act 4136 also speaks of other fees such as the special permit fees for certain types of motor vehicles (Sec. 10) and additional fees for change of registration (Sec. 11). These are not to be understood as taxes because such fees are very minimal to be revenue-raising. Thus, they are not mentioned by Sec. 59(b) of the Code as taxes like the motor vehicle registration fee and chauffeurs license fee. Such fees are to go into the expenditures of the Land Transportation Commission as provided for in the last proviso of Sec. 61.[44] (Underscoring supplied) The P10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy, no doubt, was a big burden on the seller or the ultimate consumer. It increased the price of a bag of fertilizer by as much as five percent.[45] A plain reading of the LOI also supports the conclusion that the levy was for revenue generation. The LOI expressly provided that the levy was imposed until adequate capital is raised to make PPI viable. Taxes are exacted only for a public purpose. The P10 levy is unconstitutional because it was not for a public purpose. The levy was imposed to give undue benefit to PPI. An inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons.[46] The reason for this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public purpose. It would be a robbery for the State to tax its citizens and use the funds generated for a private purpose. As an old United States case bluntly put it: To lay with one hand, the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is nonetheless a robbery because it is done under the forms of law and is called taxation.[47] The term public purpose is not defined. It is an elastic concept that can be hammered to fit modern standards. Jurisprudence states that public purpose should be given a broad interpretation. It does not only pertain to those purposes which are traditionally viewed as essentially government functions, such as building roads and delivery of basic services, but also includes those purposes designed to promote social justice. Thus, public money may now be used for the relocation of illegal settlers, low-cost housing and urban or agrarian reform. While the categories of what may constitute a public purpose are continually expanding in light of the expansion of government functions, the inherent requirement that taxes can only be exacted for a public purpose still stands. Public purpose is the heart of a tax law. When a tax law is only a mask to exact funds from the public when its true intent is to give undue benefit and advantage to a private enterprise, that law will not satisfy the requirement of public purpose. The purpose of a law is evident from its text or inferable from other secondary sources. Here, We agree with the RTC and that CA that the levy imposed under LOI No. 1465 was not for a public purpose. First, the LOI expressly provided that the levy be imposed to benefit PPI, a private company. The purpose is explicit from Clause 3 of the law, thus: 3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines. [48] (Underscoring supplied) It is a basic rule of statutory construction that the text of a statute should be given a literal meaning. In this case, the text of the LOI is plain that the levy was imposed in order to raise capital for PPI. The framers of the LOI did not even hide the insidious purpose of the law. They were cavalier

enough to name PPI as the ultimate beneficiary of the taxes levied under the LOI. We find it utterly repulsive that a tax law would expressly name a private company as the ultimate beneficiary of the taxes to be levied from the public. This is a clear case of crony capitalism. Second, the LOI provides that the imposition of the P10 levy was conditional and dependent upon PPI becoming financially viable. This suggests that the levy was actually imposed to benefit PPI. The LOI notably does not fix a maximum amount when PPI is deemed financially viable. Worse, the liability of Fertiphil and other domestic sellers of fertilizer to pay the levy is made indefinite. They are required to continuously pay the levy until adequate capital is raised for PPI. Third, the RTC and the CA held that the levies paid under the LOI were directly remitted and deposited by FPA to Far East Bank and Trust Company, the depositary bank of PPI.[49] This proves that PPI benefited from the LOI. It is also proves that the main purpose of the law was to give undue benefit and advantage to PPI. Fourth, the levy was used to pay the corporate debts of PPI. A reading of the Letter of Understanding[50] dated May 18, 1985 signed by then Prime Minister Cesar Virata reveals that PPI was in deep financial problem because of its huge corporate debts. There were pending petitions for rehabilitation against PPI before the Securities and Exchange Commission. The government guaranteed payment of PPIs debts to its foreign creditors. To fund the payment, President Marcos issued LOI No. 1465. The pertinent portions of the letter of understanding read: Republic Office Manila of of the the Prime Philippines Minister

unpaid portion of the outstanding capital stock of Planters being hereafter referred to as the Unpaid Capital), and subsequently for such capital increases as may be required for the continuing viability of Planters. xxxx The capital recovery component shall continue to be charged and collected until payment in full of (a) the Unpaid Capital and/or (b) any shortfall in the payment of the Subsidy Receivables, (c) any carrying cost accruing from the date hereof on the amounts which may be outstanding from time to time of the Unpaid Capital and/or the Subsidy Receivables, and (d) the capital increases contemplated in paragraph 2 hereof. For the purpose of the foregoing clause (c), the carrying cost shall be at such rate as will represent the full and reasonable cost to Planters of servicing its debts, taking into account both its peso and foreign currency-denominated obligations. REPUBLIC OF THE PHILIPPINES By: (signed) CESAR E. A. VIRATA Prime Minister and Minister of Finance[51] It is clear from the Letter of Understanding that the levy was imposed precisely to pay the corporate debts of PPI. We cannot agree with PPI that the levy was imposed to ensure the stability of the fertilizer industry in the country. The letter of understanding and the plain text of the LOI clearly indicate that the levy was exacted for the benefit of a private corporation. All told, the RTC and the CA did not err in holding that the levy imposed under LOI No. 1465 was not for a public purpose. LOI No. 1465 failed to comply with the public purpose requirement for tax laws. The LOI is still unconstitutional even if enacted under the police power; it did not promote public interest. Even if We consider LOI No. 1695 enacted under the police power of the State, it would still be invalid for failing to comply with the test of lawful subjects and lawful means. Jurisprudence states the test as follows: (1) the interest of the public generally, as distinguished from those of particular class, requires its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.[52] For the same reasons as discussed, LOI No. 1695 is invalid because it did not promote public interest. The law was enacted to give undue advantage to a private corporation. We quote with approval the CA ratiocination on this point, thus: It is upon applying this established tests that We sustain the trial courts holding LOI 1465 unconstitutional. To be sure, ensuring the continued supply and distribution of fertilizer in the country is an undertaking imbued with public interest. However, the method by which LOI 1465 sought to achieve this is by no means a measure that will promote the public welfare. The governments commitment to support the successful rehabilitation and continued viability of PPI, a private corporation, is an unmistakable attempt to mask the subject statutes impartiality. There is no way to treat the self-interest of a favored entity, like PPI, as identical with the general interest of the countrys farmers or even the Filipino people in general. Well to stress, substantive due process exacts fairness and equal protection disallows distinction where none is needed. When a statutes public purpose is spoiled by private interest, the use of police power becomes a travesty which must be struck down for being an arbitrary exercise of government power. To rule in favor of appellant would contravene the general principle that revenues derived from taxes cannot be used for purely private purposes or for the exclusive benefit of private individuals. (Underscoring supplied) The general rule is that an unconstitutional law is void; the doctrine of operative fact is inapplicable. PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the doctrine of operative fact, which

LETTER OF UNDERTAKING May 18, 1985 TO: THE BANKING AND FINANCIAL INSTITUTIONS LISTED IN ANNEX A HERETO WHICH ARE CREDITORS (COLLECTIVELY, THE CREDITORS) OF PLANTERS PRODUCTS, INC. (PLANTERS) Gentlemen: This has reference to Planters which is the principal importer and distributor of fertilizer, pesticides and agricultural chemicals in the Philippines. As regards Planters, the Philippine Government confirms its awareness of the following: (1) that Planters has outstanding obligations in foreign currency and/or pesos, to the Creditors, (2) that Planters is currently experiencing financial difficulties, and (3) that there are presently pending with the Securities and Exchange Commission of the Philippines a petition filed at Planters own behest for the suspension of payment of all its obligations, and a separate petition filed by Manufacturers Hanover Trust Company, Manila Offshore Branch for the appointment of a rehabilitation receiver for Planters. In connection with the foregoing, the Republic of the Philippines (the Republic) confirms that it considers and continues to consider Planters as a major fertilizer distributor. Accordingly, for and in consideration of your expressed willingness to consider and participate in the effort to rehabilitate Planters, the Republic hereby manifests its full and unqualified support of the successful rehabilitation and continuing viability of Planters, and to that end, hereby binds and obligates itself to the creditors and Planters, as follows: xxxx 2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to include in its fertilizer pricing formula a capital recovery component, the proceeds of which will be used initially for the purpose of funding the unpaid portion of the outstanding capital stock of Planters presently held in trust by Planters Foundation, Inc. (Planters Foundation), which unpaid capital is estimated at approximately P206 million (subject to validation by Planters and Planters Foundation) such

provides that an unconstitutional law has an effect before being declared unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional. We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been raised in the court a quo.[53] PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law. At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed.[54] Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides: ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. [55] It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. [56] The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy[57] or would put in limbo the acts done by a municipality in reliance upon a law creating it.[58] Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its bank account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that every person who, through an act of performance by another comes into possession of something at the expense of the latter without just or legal ground shall return the same to him. We cannot allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by Fertiphil. WHEREFORE, the petition is DENIED. The Court of Appeals Decision dated November 28, 2003 is AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 117040 January 27, 2000

petitioner Ruben Serrano's complaint for illegal dismissal and denied his motion for reconsideration. The facts are as follows: Petitioner was hired by private respondent Isetann Department Store as a security checker to apprehend shoplifters and prevent pilferage of merchandise.1 Initially hired on October 4, 1984 on contractual basis, petitioner eventually became a regular employee on April 4, 1985. In 1988, he became head of the Security Checkers Section of private respondent.2 Sometime in 1991, as a cost-cutting measure, private respondent decided to phase out its entire security section and engage the services of an independent security agency. For this reason, it wrote petitioner the following memorandum:3 October 11, 1991 MR. RUBEN SERRANO PRESENT Dear Mr. Seranno, In view of the retrenchment program of the company, we hereby reiterate our verbal notice to you of your termination as Security Section Head effective October 11, 1991. Please secure your clearance from this office. Very truly yours, [Sgd.] TERESITA A. Human Resources Division Manager VILLANUEVA

The loss of his employment prompted petitioner to file a complaint on December 3, 1991 for illegal dismissal, illegal layoff, unfair labor practice, underpayment of wages, and nonpayment of salary and overtime pay.4 The parties were required to submit their position papers, on the basis of which the Labor Arbiter defined the issues as follows:5 Whether or not there is a valid ground for the dismissal of the complainant. Whether or not complainant is entitled to his monetary claims for underpayment of wages, nonpayment of salaries, 13th month pay for 1991 and overtime pay. Whether or not Respondent is guilty of unfair labor practice. Thereafter, the case was heard. On April 30, 1993, the Labor Arbiter rendered a decision finding petitioner to have been illegally dismissed. He ruled that private respondent failed to establish that it had retrenched its security section to prevent or minimize losses to its business; that private respondent failed to accord due process to petitioner; that private respondent failed to use reasonable standards in selecting employees whose employment would be terminated; that private respondent had not shown that petitioner and other employees in the security section were so inefficient so as to justify their replacement by a security agency, or that "cost-saving devices [such as] secret video cameras (to monitor and prevent shoplifting) and secret code tags on the merchandise" could not have been employed; instead, the day after petitioner's dismissal, private respondent employed a safety and security supervisor with duties and functions similar to those of petitioner.1wphi1.nt Accordingly, the Labor Arbiter ordered:6

RUBEN SERRANO, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and ISETANN DEPARTMENT STORE, respondents. MENDOZA, J.: This is a Petition seeking review of the resolutions, dated March 30, 1994 and August 26, 1994, of the National Labor Relations Commission (NLRC) which reversed the decision of the Labor Arbiter and dismissed

WHEREFORE, above premises considered, judgment is hereby decreed: (a) Finding the dismissal of the complainant to be illegal and concomitantly, Respondent is ordered to pay complainant full backwages without qualification or deduction in the amount of P74,740.00 from the time of his dismissal until reinstatement. (computed till promulgation only) based on his monthly salary of P4,040.00/month at the time of his termination but limited to (3) three years; (b) Ordering the Respondent to immediately reinstate the complainant to his former position as security section head or to a reasonably equivalent supervisorial position in charges of security without loss of seniority rights, privileges and benefits. This order is immediately executory even pending appeal; (c) Ordering the Respondent to pay complainant unpaid wages in the amount of P2,020.73 and proportionate 13th month pay in the amount of P3,198.30; (d) Ordering the Respondent to pay complainant the amount of P7,995.91, representing 10% attorney's fees based on the total judgment award of P79,959.12. All other claims of the complainant whether monetary or otherwise is hereby dismissed for lack of merit. SO ORDERED. Private respondent appealed to the NLRC which, in its resolution of March 30, 1994; reversed the decision of the Labor Arbiter and ordered petitioner to be given separation pay equivalent to one month pay for every year of service, unpaid salary, and proportionate 13th month pay. Petitioner filed a motion for reconsideration, but his motion was denied. The NLRC held that the phase-out of private respondent's security section and the hiring of an independent security agency constituted an exercise by private respondent of "[a] legitimate business decision whose wisdom we do not intend to inquire into and for which we cannot substitute our judgment"; that the distinction made by the Labor Arbiter between "retrenchment" and the employment of cost-saving devices" under Art. 283 of the Labor Code was insignificant because the company official who wrote the dismissal letter apparently used the term "retrenchment" in its "plain and ordinary sense: to layoff or remove from one's job, regardless of the reason therefor"; that the rule of "reasonable criteria" in the selection of the employees to be retrenched did not apply because all positions in the security section had been abolished; and that the appointment of a safety and security supervisor referred to by petitioner to prove bad faith on private respondent's part was of no moment because the position had long been in existence and was separate from petitioner's position as head of the Security Checkers Section. Hence this petition. Petitioner raises the following issue: IS THE HIRING OF AN INDEPENDENT SECURITY AGENCY BY THE PRIVATE RESPONDENT TO REPLACE ITS CURRENT SECURITY SECTION A VALID GROUND FOR THE DISMISSAL OF THE EMPLOYEES CLASSED UNDER THE LATTER?7 Petitioner contends that abolition of private respondent's Security Checkers Section and the employment of an independent security agency do not fall under any of the authorized causes for dismissal under Art. 283 of the Labor Code. Petitioner Laid Off for Cause Petitioner's contention has no merit. Art. 283 provides:

Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operations of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the, workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to at least one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year. In De Ocampo v. National Labor Relations Commission ,8 this Court upheld the termination of employment of three mechanics in a transportation company and their replacement by a company rendering maintenance and repair services. It held: In contracting the services of Gemac Machineries, as part of the company's cost-saving program, the services rendered by the mechanics became redundant and superfluous, and therefore properly terminable. The company merely exercised its business judgment or management prerogative. And in the absence of any proof that the management abused its discretion or acted in a malicious or arbitrary manner, the court will not interfere with the exercise of such prerogative.9 In Asian Alcohol Corporation v. National Labor Relations Commission ,10 the Court likewise upheld the termination of employment of water pump tenders and their replacement by independent contractors. It ruled that an employer's good faith in implementing a redundancy program is not necessarily put in doubt by the availment of the services of an independent contractor to replace the services of the terminated employees to promote economy and efficiency. Indeed, as we pointed out in another case, the "[management of a company] cannot be denied the faculty of promoting efficiency and attaining economy by a study of what units are essential for its operation. To it belongs the ultimate determination of whether services should be performed by its personnel or contracted to outside agencies . . . [While there] should be mutual consultation, eventually deference is to be paid to what management decides."11 Consequently, absent proof that management acted in a malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by an employer.12 In the case at bar, we have only the bare assertion of petitioner that, in abolishing the security section, private respondent's real purpose was to avoid payment to the security checkers of the wage increases provided in the collective bargaining agreement approved in 1990.13 Such an assertion is not sufficient basis for concluding that the termination of petitioner's employment was not a bona fide decision of management to obtain reasonable return from its investment, which is a right guaranteed to employers under the Constitution.14 Indeed, that the phase-out of the security section constituted a "legitimate business decision" is a factual finding of an administrative agency which must be accorded respect and even finality by this Court since nothing can be found in the record which fairly detracts from such finding.15 Accordingly, we hold that the termination of petitioner's services was for an authorized cause, i.e., redundancy. Hence, pursuant to Art. 283 of the Labor Code, petitioner should be given separation pay at the rate of one month pay for every year of service. Sanctions for Violations of the Notice Requirement

Art. 283 also provides that to terminate the employment of an employee for any of the authorized causes the employer must serve "a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof." In the case at bar, petitioner was given a notice of termination on October 11, 1991. On the same day, his services were terminated. He was thus denied his right to be given written notice before the termination of his employment, and the question is the appropriate sanction for the violation of petitioner's right. To be sure, this is not the first time this question has arisen. In Subuguero v. NLRC,16 workers in a garment factory were temporarily laid off due to the cancellation of orders and a garment embargo. The Labor Arbiter found that the workers had been illegally dismissed and ordered the company to pay separation pay and backwages. The NLRC, on the other hand, found that this was a case of retrenchment due to business losses and ordered the payment of separation pay without backwages. This Court sustained the NLRC's finding. However, as the company did not comply with the 30-day written notice in Art. 283 of the Labor Code, the Court ordered the employer to pay the workers P2,000.00 each as indemnity. The decision followed the ruling in several cases involving dismissals which, although based on any of the just causes under Art. 282,17 were effected without notice and hearing to the employee as required by the implementing rules.18 As this Court said: "It is now settled that where the dismissal of one employee is in fact for a just and valid cause and is so proven to be but he is not accorded his right to due process, i.e., he was not furnished the twin requirements of notice and opportunity to be heard, the dismissal shall be upheld but the employer must be sanctioned for noncompliance with the requirements of, or for failure to observe, due process."19 The rule reversed a long standing policy theretofore followed that even though the dismissal is based on a just cause or the termination of employment is for an authorized cause, the dismissal or termination is illegal if effected without notice to the employee. The shift in doctrine took place in 1989 in Wenphil Corp. v. NLRC.20 In announcing the change, this Court said:21 The Court holds that the policy of ordering the reinstatement to the service of an employee without loss of seniority and the payment of his wages during the period of his separation until his actual reinstatement but not exceeding three (3) years without qualification or deduction, when it appears he was not afforded due process, although his dismissal was found to be for just and authorized cause in an appropriate proceeding in the Ministry of Labor and Employment, should be re-examined. It will be highly prejudicial to the interests of the employer to impose on him the services of an employee who has been shown to be guilty of the charges that warranted his dismissal from employment. Indeed, it will demoralize the rank and file if the undeserving, if not undesirable, remains in the service. xxx xxx xxx

Need for Reexamining the Wenphil Doctrine Today, we once again consider the question of appropriate sanctions for violations of the notice experience during the last decade or so with the Wenphil doctrine. The number of cases involving dismissals without the requisite notice to the employee, although effected for just or authorized causes, suggest that the imposition of fine for violation of the notice requirement has not been effective in deterring violations of the notice requirement. Justice Panganiban finds the monetary sanctions "too insignificant, too niggardly, and sometimes even too late." On the other hand, Justice Puno says there has in effect been fostered a policy of "dismiss now; pay later" which moneyed employers find more convenient to comply with than the requirement to serve a 30-day written notice (in the case of termination of employment for an authorized cause under Arts. 283-284) or to give notice and hearing (in the case of dismissals for just causes under Art. 282). For this reason, they regard any dismissal or layoff without the requisite notice to be null and void even though there are just or authorized cause for such dismissal or layoff. Consequently, in their view, the employee concerned should be reinstated and paid backwages. Validity of Petitioner's Layoff Not Affected by Lack of Notice We agree with our esteemed colleagues, Justices Puno and Panganiban, that we should rethink the sanction of fine for an employer's disregard of the notice requirement. We do not agree, however, that disregard of this requirement by an employer renders the dismissal or termination of employment null and void. Such a stance is actually a reversion to the discredited pre-Wenphil rule of ordering an employee to be reinstated and paid backwages when it is shown that he has not been given notice and hearing although his dismissal or layoff is later found to be for a just or authorized cause. Such rule was abandoned in Wenphil because it is really unjust to require an employer to keep in his service one who is guilty, for example, of an attempt on the life of the employer or the latter's family, or when the employer is precisely retrenching in order to prevent losses. The need is for a rule which, while recognizing the employee's right to notice before he is dismissed or laid off, at the same time acknowledges the right of the employer to dismiss for any of the just causes enumerated in Art. 282 or to terminate employment for any of the authorized causes mentioned in Arts. 283-284. If the Wenphil rule imposing a fine on an employer who is found to have dismissed an employee for cause without prior notice is deemed ineffective in deterring employer violations of the notice requirement, the remedy is not to declare the dismissal void if there are just or valid grounds for such dismissal or if the termination is for an authorized cause. That would be to uphold the right of the employee but deny the right of the employer to dismiss for cause. Rather, the remedy is to order the payment to the employee of full backwages from the time of his dismissal until the court finds that the dismissal was for a just cause. But, otherwise, his dismissal must be upheld and he should not be reinstated. This is because his dismissal is ineffectual. For the same reason, if an employee is laid off for any of the causes in Arts. 283-284, i.e., installation of a labor-saving device, but the employer did not give him and the DOLE a 30-day written notice of termination in advance, then the termination of his employment should be considered ineffectual and he should be paid backwages. However, the termination of his employment should not be considered void but he should simply be paid separation pay as provided in Art. 283 in addition to backwages. Justice Puno argues that an employer's failure to comply with the notice requirement constitutes a denial of the employee's right to due process. Prescinding from this premise, he quotes the statement of Chief Justice Concepcion Vda. de Cuaycong v. Vda. de Sengbengco 26 that "acts of Congress, as well as of the Executive, can deny due process only under the pain of nullity, and judicial proceedings suffering from the same flaw are subject to the same sanction, any statutory provision to the contrary notwithstanding." Justice Puno concludes that the dismissal of an employee without notice and hearing, even if for a just cause, as provided in Art. 282, or for an authorized cause, as provided in Arts. 283-284, is a nullity.

However, the petitioner must nevertheless be held to account for failure to extend to private respondent his right to an investigation before causing his dismissal. The rule is explicit as above discussed. The dismissal of an employee must be for just or authorized cause and after due process . Petitioner committed an infraction of the second requirement. Thus, it must be imposed a sanction for its failure to give a formal notice and conduct an investigation as required by law before dismissing petitioner from employment. Considering the circumstances of this case petitioner must indemnify the private respondent the amount of P1,000.00. The measure of this award depends on the facts of each case and the gravity of the omission committed by the employer. The fines imposed for violations of the notice requirement have varied from P1,000.0022 to P2,000.0023 to P5,000.0024 to P10,000.00.25

Hence, even if just or authorized cause exist, the employee should be reinstated with full back pay. On the other hand, Justice Panganiban quotes from the statement in People v. Bocar27 that "[w]here the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction." Violation of Notice Requirement Not a Denial of Due Process The cases cited by both Justices Puno and Panganiban refer, however, to the denial of due process by the State, which is not the case here. There are three reasons why, on the other hand, violation by the employer of the notice requirement cannot be considered a denial of due process resulting in the nullity of the employee's dismissal or layoff. The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise of private power, such as the termination of employment under the Labor Code. This is plain from the text of Art. III, 1 of the Constitution, viz.: "No person shall be deprived of life, liberty, or property without due process of law. . . ." The reason is simple: Only the State has authority to take the life, liberty, or property of the individual. The purpose of the Due Process Clause is to ensure that the exercise of this power is consistent with what are considered civilized methods. The second reason is that notice and hearing are required under the Due Process Clause before the power of organized society are brought to bear upon the individual. This is obviously not the case of termination of employment under Art. 283. Here the employee is not faced with an aspect of the adversary system. The purpose for requiring a 30-day written notice before an employee is laid off is not to afford him an opportunity to be heard on any charge against him, for there is none. The purpose rather is to give him time to prepare for the eventual loss of his job and the DOLE an opportunity to determine whether economic causes do exist justifying the termination of his employment. Even in cases of dismissal under Art. 282, the purpose for the requirement of notice and hearing is not to comply with Due Process Clause of the Constitution. The time for notice and hearing is at the trial stage. Then that is the time we speak of notice and hearing as the essence of procedural due process. Thus, compliance by the employer with the notice requirement before he dismisses an employee does not foreclose the right of the latter to question the legality of his dismissal. As Art. 277(b) provides, "Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission." Indeed, to contend that the notice requirement in the Labor Code is an aspect of due process is to overlook the fact that Art. 283 had its origin in Art. 302 of the Spanish Code of Commerce of 1882 which gave either party to the employer-employee relationship the right to terminate their relationship by giving notice to the other one month in advance. In lieu of notice, an employee could be laid off by paying him a mesada equivalent to his salary for one month.28 This provision was repealed by Art. 2270 of the Civil Code, which took effect on August 30, 1950. But on June 12, 1954, R.A. No. 1052, otherwise known as the Termination Pay Law, was enacted reviving the mesada. On June 21, 1957, the law was amended by R.A. No. 1787 providing for the giving of advance notice or the payment of compensation at the rate of one-half month for every year of service.29 The Termination Pay Law was held not to be a substantive law but a regulatory measure, the purpose of which was to give the employer the opportunity to find a replacement or substitute, and the employee the equal opportunity to look for another job or source of employment. Where the termination of employment was for a just cause, no notice was required to be given to the, employee.30 It was only on September 4, 1981 that notice was required to be given even where the dismissal or termination of an employee was for cause. This was made in the rules issued by the then Minister of Labor and Employment to implement B.P. Blg. 130 which amended the Labor Code. And it was still much later when the notice requirement was embodied in the law with the amendment of Art. 277(b)

by R.A. No. 6715 on March 2, 1989. It cannot be that the former regime denied due process to the employee. Otherwise, there should now likewise be a rule that, in case an employee leaves his job without cause and without prior notice to his employer, his act should be void instead of simply making him liable for damages. The third reason why the notice requirement under Art. 283 can not be considered a requirement of the Due Process Clause is that the employer cannot really be expected to be entirely an impartial judge of his own cause. This is also the case in termination of employment for a just cause under Art. 282 (i.e., serious misconduct or willful disobedience by the employee of the lawful orders of the employer, gross and habitual neglect of duties, fraud or willful breach of trust of the employer, commission of crime against the employer or the latter's immediate family or duly authorized representatives, or other analogous cases). Justice Puno disputes this. He says that "statistics in the DOLE will prove that many cases have been won by employees before the grievance committees manned by impartial judges of the company." The grievance machinery is, however, different because it is established by agreement of the employer and the employees and composed of representatives from both sides. That is why, in Batangas Laguna Tayabas Bus Co. v. Court of Appeals,31 which Justice Puno cites, it was held that "Since the right of [an employee] to his labor is in itself a property and that the labor agreement between him and [his employer] is the law between the parties, his summary and arbitrary dismissal amounted to deprivation of his property without due process of law." But here we are dealing with dismissals and layoffs by employers alone, without the intervention of any grievance machinery. Accordingly in Montemayor v. Araneta University Foundation,32 although a professor was dismissed without a hearing by his university, his dismissal for having made homosexual advances on a student was sustained, it appearing that in the NLRC, the employee was fully heard in his defense. Lack of Notice Only Makes Termination Ineffectual Not all notice requirements are requirements of due process. Some are simply part of a procedure to be followed before a right granted to a party can be exercised. Others are simply an application of the Justinian precept, embodied in the Civil Code,33 to act with justice, give everyone his due, and observe honesty and good faith toward one's fellowmen. Such is the notice requirement in Arts. 282-283. The consequence of the failure either of the employer or the employee to live up to this precept is to make him liable in damages, not to render his act (dismissal or resignation, as the case may be) void. The measure of damages is the amount of wages the employee should have received were it not for the termination of his employment without prior notice. If warranted, nominal and moral damages may also be awarded. We hold, therefore, that, with respect to Art. 283 of the Labor Code, the employer's failure to comply with the notice requirement does not constitute a denial of due process but a mere failure to observe a procedure for the termination of employment which makes the termination of employment merely ineffectual. It is similar to the failure to observe the provisions of Art. 1592, in relation to Art. 1191, of the Civil Code34 in rescinding a contract for the sale of immovable property. Under these provisions, while the power of a party to rescind a contract is implied in reciprocal obligations, nonetheless, in cases involving the sale of immovable property, the vendor cannot exercise this power even though the vendee defaults in the payment of the price, except by bringing an action in court or giving notice of rescission by means of a notarial demand.35 Consequently, a notice of rescission given in the letter of an attorney has no legal effect, and the vendee can make payment even after the due date since no valid notice of rescission has been given.36 Indeed, under the Labor Code, only the absence of a just cause for the termination of employment can make the dismissal of an employee illegal. This is clear from Art. 279 which provides: Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except

for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.37 Thus, only if the termination of employment is not for any of the causes provided by law is it illegal and, therefore, the employee should be reinstated and paid backwages. To contend, as Justices Puno and Panganiban do, that even if the termination is for a just or authorized cause the employee concerned should be reinstated and paid backwages would be to amend Art. 279 by adding another ground for considering a dismissal illegal. What is more, it would ignore the fact that under Art. 285, if it is the employee who fails to give a written notice to the employer that he is leaving the service of the latter, at least one month in advance, his failure to comply with the legal requirement does not result in making his resignation void but only in making him liable for damages.38 This disparity in legal treatment, which would result from the adoption of the theory of the minority cannot simply be explained by invoking resident Ramon Magsaysay's motto that "he who has less in life should have more in law." That would be a misapplication of this noble phrase originally from Professor Thomas Reed Powell of the Harvard Law School. Justice Panganiban cites Pepsi-Cola Bottling Co. v. NLRC,39 in support of his view that an illegal dismissal results not only from want of legal cause but also from the failure to observe "due process." The Pepsi-Cola case actually involved a dismissal for an alleged loss of trust and confidence which, as found by the Court, was not proven. The dismissal was, therefore, illegal, not because there was a denial of due process, but because the dismissal was without cause. The statement that the failure of management to comply with the notice requirement "taints the dismissal with illegality" was merely a dictum thrown in as additional grounds for holding the dismissal to be illegal. Given the nature of the violation, therefore, the appropriate sanction for the failure to give notice is the payment of backwages for the period when the employee is considered not to have been effectively dismissed or his employment terminated. The sanction is not the payment alone of nominal damages as Justice Vitug contends. Unjust Results of Considering Dismissals/Layoffs Without Prior Notice As Illegal The refusal to look beyond the validity of the initial action taken by the employer to terminate employment either for an authorized or just cause can result in an injustice to the employer. For not giving notice and hearing before dismissing an employee, who is otherwise guilty of, say, theft, or even of an attempt against the life of the employer, an employer will be forced to keep in his employ such guilty employee. This is unjust. It is true the Constitution regards labor as "a primary social economic force."40 But so does it declare that it "recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investment."41 The Constitution bids the State to "afford full protection to labor."42 But it is equally true that "the law, in protecting the right's of the laborer, authorizes neither oppression nor self-destruction of the employer."43 And it is oppression to compel the employer to continue in employment one who is guilty or to force the employer to remain in operation when it is not economically in his interest to do so. In sum, we hold that if in proceedings for reinstatement under Art. 283, it is shown that the termination of employment was due to an authorized cause, then the employee concerned should not be ordered reinstated even though there is failure to comply with the 30-day notice requirement. Instead, he must be granted separation pay in accordance with Art. 283, to wit: In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1)

month pay or to at least one month for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six months shall be considered one (1) whole year. If the employee's separation is without cause, instead of being given separation pay, he should be reinstated. In either case, whether he is reinstated or only granted separation pay, he should be paid full backwages if he has been laid off without written notice at least 30 days in advance. On the other hand, with respect to dismissals for cause under Art. 282, if it is shown that the employee was dismissed for any of the just causes mentioned in said Art. 282, then, in accordance with that article, he should not be reinstated. However, he must be paid backwages from the time his employment was terminated until it is determined that the termination of employment is for a just cause because the failure to hear him before he is dismissed renders the termination of his employment without legal effect. WHEREFORE, the petition is GRANTED and the resolution of the National Labor Relations Commission is MODIFIED by ordering private respondent Isetann Department Store, Inc. to pay petitioner separation pay equivalent to one (1) month pay for every year of service, his unpaid salary, and his proportionate 13th month pay and, in addition, full backwages from the time his employment was terminated on October 11, 1991 up to the time the decision herein becomes final. For this purpose, this case is REMANDED to the Labor Arbiter for computation of the separation pay, backwages, and other monetary awards to petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC

FRANCISCO I. CHAVEZ, Petitioner,

G.R. No. 164527

Present:

PUNO, CJ, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, - versus CARPIO, AUSTRIA-MARTINEZ,

CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, NATIONAL HOUSING AUTHORITY, R-II BUILDERS, INC., R-II HOLDINGS, INC., HARBOUR CENTRE PORT TERMINAL, INC., and MR. REGHIS ROMERO II, Respondents. August 15, 2007 Promulgated: VELASCO, NACHURA, and REYES, JJ.

The Facts On March 1, 1988, then President Corazon C. Aquino issued Memorandum Order No. (MO) 161 approving and directing the implementation of the Comprehensive and Integrated Metropolitan Manila Waste Management Plan (the Plan). The Metro Manila Commission, in coordination with various government agencies, was tasked as the lead agency to implement the Plan as formulated by the Presidential Task Force on Waste Management created by Memorandum Circular No. 39. A day after, on March 2, 1988, MO 161-A was issued, containing the guidelines which prescribed the functions and responsibilities of fifteen (15) various government departments and offices tasked to implement the Plan, namely: Department of Public Works and Highway (DPWH), Department of Health (DOH), Department of Environment and Natural Resources (DENR), Department of Transportation and Communication, Department of Budget and Management, National Economic and Development Authority (NEDA), Philippine Constabulary Integrated National Police, Philippine Information Agency and the Local Government Unit (referring to the City of Manila), Department of Social Welfare and Development, Presidential Commission for Urban Poor, National Housing Authority (NHA), Department of Labor and Employment, Department of Education, Culture and Sports (now Department of Education), and Presidential Management Staff. Specifically, respondent NHA was ordered to conduct feasibility studies and develop low-cost housing projects at the dumpsite and absorb scavengers in NHA resettlement/low-cost housing projects. On the other hand, the DENR was tasked to review and evaluate proposed projects under the Plan with regard to their environmental impact, conduct regular monitoring of activities of the Plan to ensure compliance with environmental standards and assist DOH in the conduct of the study on hospital waste management. At the time MO 161-A was issued by President Aquino, Smokey Mountain was a wasteland in Balut, Tondo, Manila, where numerous Filipinos resided in subhuman conditions, collecting items that may have some monetary value from the garbage. The Smokey Mountain dumpsite is bounded on the north by the Estero Marala, on the south by the property of the National Government, on the east by the property of B and I Realty Co., and on the west by Radial Road 10 (R-10). Pursuant to MO 161-A, NHA prepared the feasibility studies of the Smokey Mountain low-cost housing project which resulted in the formulation of the Smokey Mountain Development Plan and Reclamation of the Area Across R-10 or the Smokey Mountain Development and Reclamation Project (SMDRP; the Project). The Project aimed to convert the Smokey Mountain dumpsite into a habitable housing project, inclusive of the reclamation of the area across R-10, adjacent to the Smokey Mountain as the enabling component of the project. Once finalized, the Plan was submitted to President Aquino for her approval. On July 9, 1990, the Build-Operate-and-Transfer (BOT) Law (Republic Act No. [RA] 6957) was enacted. Its declared policy under Section 1 is [t]o recognize the indispensable role of the private sector as the main engine for national growth and development and provide the most appropriate favorable incentives to mobilize private resources for the purpose. Sec. 3 authorized and empowered [a]ll government infrastructure agencies, including government-owned and controlled corporations and local government units x x x to enter into contract with any duly pre-qualified private contractor for the financing, construction, operation and maintenance of any financially viable infrastructure facilities through the build-operate-transfer or build and transfer scheme. RA 6957 defined build-and-transfer scheme as [a] contractual arrangement whereby the contractor undertakes the construction, including financing, of a given infrastructure facility, and its turnover after the completion to the government agency or local government unit concerned which shall pay the contractor its total investment expended on the project, plus reasonable rate of return thereon. The last paragraph of Sec. 6 of the BOT Law provides that the repayment scheme in the case of land reclamation or the building of industrial estates may consist of [t]he grant of a portion or percentage of the reclaimed land or industrial estate built,

x----------------------------------------------------------------------------------------x DECISION VELASCO, JR., J.: In this Petition for Prohibition and Mandamus with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction under Rule 65, petitioner, in his capacity as taxpayer, seeks: to declare NULL AND VOID the Joint Venture Agreement (JVA) dated March 9, 1993 between the National Housing Authority and R-II Builders, Inc. and the Smokey Mountain Development and Reclamation Project embodied therein; the subsequent amendments to the said JVA; and all other agreements signed and executed in relation thereto including, but not limited to the Smokey Mountain Asset Pool Agreement dated 26 September 1994 and the separate agreements for Phase I and Phase II of the Projectas well as all other transactions which emanated therefrom, for being UNCONSTITUTIONAL and INVALID; to enjoin respondentsparticularly respondent NHA from further implementing and/or enforcing the said project and other agreements related thereto, and from further deriving and/or enjoying any rights, privileges and interest therefrom x x x; and to compel respondents to disclose all documents and information relating to the projectincluding, but not limited to, any subsequent agreements with respect to the different phases of the project, the revisions over the original plan, the additional works incurred thereon, the current financial condition of respondent R-II Builders, Inc., and the transactions made respecting the project.

subject to the constitutional requirements with respect to the ownership of lands. On February 10, 1992, Joint Resolution No. 03 was passed by both houses of Congress. Sec. 1 of this resolution provided, among other things, that: Section 1. There is hereby approved the following national infrastructure projects for implementation under the provisions of Republic Act No. 6957 and its implementing rules and regulations: xxxx (d) Port infrastructure like piers, wharves, quays, storage handling, ferry service and related facilities; xxxx (k) Land reclamation, dredging and other related development facilities; (l) Industrial estates, regional industrial centers and export processing zones including steel mills, iron-making and petrochemical complexes and related infrastructure and utilities; xxxx (p) Environmental and solid waste management-related facilities such as collection equipment, composting plants, incinerators, landfill and tidal barriers, among others; and (q) Development of new townsites and communities and related facilities. This resolution complied with and conformed to Sec. 4 of the BOT Law requiring the approval of all national infrastructure projects by the Congress. On January 17, 1992, President Aquino proclaimed MO 415 approving and directing the implementation of the SMDRP. Secs. 3 and 4 of the Memorandum Order stated: Section 3. The National Housing Authority is hereby directed to implement the Smokey Mountain Development Plan and Reclamation of the Area Across R-10 through a private sector joint venture scheme at the least cost to the government. Section 4. The land area covered by the Smokey Mountain dumpsite is hereby conveyed to the National Housing Authority as well as the area to be reclaimed across R-10. (Emphasis supplied.)

member of the EXECOM. Notably, in a September 2, 1994 Letter, PEA General Manager Amado Lagdameo approved the plans for the reclamation project prepared by the NHA. In conformity with Sec. 5 of MO 415, an inter-agency technical committee (TECHCOM) was created composed of the technical representatives of the EXECOM [t]o assist the NHA in the evaluation of the project proposals, assist in the resolution of all issues and problems in the project to ensure that all aspects of the development from squatter relocation, waste management, reclamation, environmental protection, land and house construction meet governing regulation of the region and to facilitate the completion of the project. Subsequently, the TECHCOM put out the Public Notice and Notice to Pre-Qualify and Bid for the right to become NHAs joint venture partner in the implementation of the SMDRP. The notices were published in newspapers of general circulation on January 23 and 26 and February 1, 14, 16, and 23, 1992, respectively. Out of the thirteen (13) contractors who responded, only five (5) contractors fully complied with the required prequalification documents. Based on the evaluation of the pre-qualification documents, the EXECOM declared the New San Jose Builders, Inc. and RII Builders, Inc. (RBI) as the top two contractors. Thereafter, the TECHCOM evaluated the bids (which include the Pre-feasibility Study and Financing Plan) of the top two (2) contractors in this manner: (1) The DBP, as financial advisor to the Project, evaluated their Financial Proposals; (2) The DPWH, PPA, PEA and NHA evaluated the Technical Proposals for the Housing Construction and Reclamation; (3) The DENR evaluated Technical Proposals on Waste Management and Disposal by conducting the Environmental Impact Analysis; and (4) The NHA and the City of Manila evaluated the socio-economic benefits presented by the proposals. On June 30, 1992, Fidel V. Ramos assumed the Office of the President (OP) of the Philippines. On August 31, 1992, the TECHCOM submitted its recommendation to the EXECOM to approve the R-II Builders, Inc. (RBI) proposal which garnered the highest score of 88.475%. Subsequently, the EXECOM made a Project briefing to President Ramos. As a result, President Ramos issued Proclamation No. 39 on September 9, 1992, which reads: WHEREAS, the National Housing Authority has presented a viable conceptual plan to convert the Smokey Mountain dumpsite into a habitable housing project, inclusive of the reclamation of the area across Road Radial 10 (R-10) adjacent to the Smokey Mountain as the enabling component of the project; xxxx These parcels of land of public domain are hereby placed under the administration and disposition of the National Housing Authority to develop, subdivide and dispose to qualified beneficiaries, as well as its development for mix land use (commercial/industrial) to provide employment opportunities to on-site families and additional areas for port-related activities.

In addition, the Public Estates Authority (PEA) was directed to assist in the evaluation of proposals regarding the technical feasibility of reclamation, while the DENR was directed to (1) facilitate titling of Smokey Mountain and of the area to be reclaimed and (2) assist in the technical evaluation of proposals regarding environmental impact statements. In the same MO 415, President Aquino created an Executive Committee (EXECOM) to oversee the implementation of the Plan, chaired by the National Capital Region-Cabinet Officer for Regional Development (NCR-CORD) with the heads of the NHA, City of Manila, DPWH, PEA, Philippine Ports Authority (PPA), DENR, and Development Bank of the Philippines (DBP) as members. The NEDA subsequently became a

In order to facilitate the early development of the area for disposition, the Department of Environment and Natural Resources, through the Lands and Management Bureau, is hereby directed to approve the boundary and subdivision survey and to issue a special patent and title in the name of the National Housing Authority, subject to final survey and private rights, if any there be. (Emphasis supplied.)

undertaken. These temporary housing units shall be turned over to the [NHA] for disposition. 2.04 The [RBI] shall construct 3,500 medium rise low cost permanent housing units on the leveled Smokey Mountain complete with basic utilities and amenities, in accordance with the plans and specifications set forth in the Final Report approved by the [NHA]. Completed units ready for mortgage take out shall be turned over by the [RBI] to NHA on agreed schedule. 2.05 The [RBI] shall reclaim forty (40) hectares of Manila Bay area directly across [R-10] as contained in Proclamation No. 39 as the enabling component of the project and payment to the [RBI] as its asset share. 2.06 The [RBI] shall likewise furnish all labor materials and equipment necessary to complete all herein development works to be undertaken on a phase to phase basis in accordance with the work program stipulated therein.

On October 7, 1992, President Ramos authorized NHA to enter into a Joint Venture Agreement with RBI [s]ubject to final review and approval of the Joint Venture Agreement by the Office of the President. On March 19, 1993, the NHA and RBI entered into a Joint Venture Agreement (JVA) for the development of the Smokey Mountain dumpsite and the reclamation of the area across R-10 based on Presidential Decree No. (PD) 757 which mandated NHA [t]o undertake the physical and socio-economic upgrading and development of lands of the public domain identified for housing, MO 161-A which required NHA to conduct the feasibility studies and develop a low-cost housing project at the Smokey Mountain, and MO 415 as amended by MO 415-A which approved the Conceptual Plan for Smokey Mountain and creation of the EXECOM and TECHCOM. Under the JVA, the Project involves the clearing of Smokey Mountain for eventual development into a low cost medium rise housing complex and industrial/commercial site with the reclamation of the area directly across [R-10] to act as the enabling component of the Project. The JVA covered a lot in Tondo, Manila with an area of two hundred twelve thousand two hundred thirty-four (212,234) square meters and another lot to be reclaimed also in Tondo with an area of four hundred thousand (400,000) square meters. The Scope of Work of RBI under Article II of the JVA is as follows: a) To fully finance all aspects of development of Smokey Mountain and reclamation of no more than 40 hectares of Manila Bay area across Radial Road 10. b) To immediately commence on the preparation of feasibility report and detailed engineering with emphasis to the expedient acquisition of the Environmental Clearance Certificate (ECC) from the DENR. c) The construction activities will only commence after the acquisition of the ECC, and d) Final details of the contract, including construction, duration and delivery timetables, shall be based on the approved feasibility report and detailed engineering. Other obligations of RBI are as follows: 2.02 The [RBI] shall develop the PROJECT based on the Final Report and Detailed Engineering as approved by the Office of the President. All costs and expenses for hiring technical personnel, date gathering, permits, licenses, appraisals, clearances, testing and similar undertaking shall be for the account of the [RBI]. 2.03 The [RBI] shall undertake the construction of 3,500 temporary housing units complete with basic amenities such as plumbing, electrical and sewerage facilities within the temporary housing project as staging area to temporarily house the squatter families from the Smokey Mountain while development is being

The profit sharing shall be based on the approved pre-feasibility report submitted to the EXECOM, viz: For the developer (RBI):

1. To own the forty (40) hectares of reclaimed land. 2. To own the commercial area at the Smokey Mountain area composed of 1.3 hectares, and 3. To own all the constructed units of medium rise low cost permanent housing units beyond the 3,500 units share of the [NHA]. For the NHA: 1. To own the temporary housing consisting of 3,500 units. 2. To own the cleared and fenced incinerator site consisting of 5 hectares situated at the Smokey Mountain area. 3. To own the 3,500 units of permanent housing to be constructed by [RBI] at the Smokey Mountain area to be awarded to qualified on site residents. 4. To own the Industrial Area site consisting of 3.2 hectares, and 5. To own the open spaces, roads and facilities within the Smokey Mountain area.

In the event of extraordinary increase in labor, materials, fuel and non-recoverability of total project expenses, the OP, upon recommendation of the NHA, may approve a corresponding adjustment in the enabling component. The functions and responsibilities of RBI and NHA are as follows: For RBI:

4.01 Immediately commence on the preparation of the FINAL REPORT with emphasis to the expedient acquisition, with the assistance of the [NHA] of Environmental Compliance Certificate (ECC) from the Environmental Management Bureau (EMB) of the [DENR]. Construction shall only commence after the acquisition of the ECC. The Environment Compliance Certificate (ECC) shall form part of the FINAL REPORT. The FINAL REPORT shall provide the necessary subdivision and housing plans, detailed engineering and architectural drawings, technical specifications and other related and required documents relative to the Smokey Mountain area. With respect to the 40-hectare reclamation area, the [RBI] shall have the discretion to develop the same in a manner that it deems necessary to recover the [RBIs] investment, subject to environmental and zoning rules. 4.02 Finance the total project cost for land development, housing construction and reclamation of the PROJECT. 4.03 Warrant that all developments shall be in compliance with the requirements of the FINAL REPORT. 4.04 Provide all administrative resources for the submission of project accomplishment reports to the [NHA] for proper evaluation and supervision on the actual implementation. 4.05 Negotiate and secure, with the assistance of the [NHA] the grant of rights of way to the PROJECT, from the owners of the adjacent lots for access road, water, electrical power connections and drainage facilities. 4.06 Provide temporary field office and transportation vehicles (2 units), one (1) complete set of computer and one (1) unit electric typewriter for the [NHAs] field personnel to be charged to the PROJECT. For the NHA: 4.07 The [NHA] shall be responsible for the removal and relocation of all squatters within Smokey Mountain to the Temporary Housing Complex or to other areas prepared as relocation areas with the assistance of the [RBI]. The [RBI] shall be responsible in releasing the funds allocated and committed for relocation as detailed in the FINAL REPORT. 4.08 Assist the [RBI] and shall endorse granting of exemption fees in the acquisition of all necessary permits, licenses, appraisals, clearances and accreditations for the PROJECT subject to existing laws, rules and regulations. 4.09 The [NHA] shall inspect, evaluate and monitor all works at the Smokey Mountain and Reclamation Area while the land development and construction of housing units are in progress to determine whether the development and construction works are undertaken in accordance with the FINAL REPORT. If in its judgment, the PROJECT is not pursued in accordance with the FINAL REPORT, the [NHA] shall require the [RBI] to undertake necessary remedial works. All expenses, charges

and penalties incurred for such remedial, if any, shall be for the account of the [RBI]. 4.10 The [NHA] shall assist the [RBI] in the complete electrification of the PROJECT. x x x 4.11 Handle the processing and documentation of all sales transactions related to its assets shares from the venture such as the 3,500 units of permanent housing and the allotted industrial area of 3.2 hectares. 4.12 All advances outside of project costs made by the [RBI] to the [NHA] shall be deducted from the proceeds due to the [NHA]. 4.13 The [NHA] shall be responsible for the acquisition of the Mother Title for the Smokey Mountain and Reclamation Area within 90 days upon submission of Survey returns to the Land Management Sector. The land titles to the 40hectare reclaimed land, the 1.3 hectare commercial area at the Smokey Mountain area and the constructed units of medium-rise permanent housing units beyond the 3,500 units share of the [NHA] shall be issued in the name of the [RBI] upon completion of the project. However, the [RBI] shall have the authority to pre-sell its share as indicated in this agreement. The final details of the JVA, which will include the construction duration, costs, extent of reclamation, and delivery timetables, shall be based on the FINAL REPORT which will be contained in a Supplemental Agreement to be executed later by the parties. The JVA may be modified or revised by written agreement between the NHA and RBI specifying the clauses to be revised or modified and the corresponding amendments. If the Project is revoked or terminated by the Government through no fault of RBI or by mutual agreement, the Government shall compensate RBI for its actual expenses incurred in the Project plus a reasonable rate of return not exceeding that stated in the feasibility study and in the contract as of the date of such revocation, cancellation, or termination on a schedule to be agreed upon by both parties. As a preliminary step in the project implementation, consultations and dialogues were conducted with the settlers of the Smokey Mountain Dumpsite Area. At the same time, DENR started processing the application for the Environmental Clearance Certificate (ECC) of the SMDRP. As a result however of the consultative dialogues, public hearings, the report on the on-site field conditions, the Environmental Impact Statement (EIS) published on April 29 and May 12, 1993 as required by the Environmental Management Bureau of DENR, the evaluation of the DENR, and the recommendations from other government agencies, it was discovered that design changes and additional work have to be undertaken to successfully implement the Project. Thus, on February 21, 1994, the parties entered into another agreement denominated as the Amended and Restated Joint Venture Agreement (ARJVA) which delineated the different phases of the Project. Phase I of the Project involves the construction of temporary housing units for the current residents of the Smokey Mountain dumpsite, the clearing and leveling-off of the dumpsite, and the construction of medium-rise lowcost housing units at the cleared and leveled dumpsite. Phase II of the Project involves the construction of an incineration area for the on-site disposal of the garbage at the dumpsite. The enabling component or consideration for Phase I of the Project was increased from 40 hectares of reclaimed lands across R-10 to 79 hectares. The revision also provided for the enabling component for Phase II of 119 hectares of reclaimed lands contiguous to the 79 hectares of reclaimed lands for Phase I. Furthermore,

the amended contract delineated the scope of works and the terms and conditions of Phases I and II, thus:

bare type, 160 units/ (sleeping quarter) 3.6 m. floor building. height, painted and improved architectural faade, 80 units/ building.

The PROJECT shall consist of Phase I and Phase II. Phase I shall involve the following: a. the construction of 2,992 units of temporary housing for the affected residents while clearing and development of Smokey Mountain [are] being undertaken b. the clearing of Smokey Mountain and the subsequent construction of 3,520 units of medium rise housing and the development of the industrial/commercial site within the Smokey Mountain area c. the reclamation and development of a 79 hectare area directly across Radial Road 10 to serve as the enabling component of Phase I Phase II shall involve the following: a. the construction and operation of an incinerator plant that will conform to the emission standards of the DENR b. the reclamation and development of 119hectare area contiguous to that to be reclaimed under Phase I to serve as the enabling component of Phase II. Under the ARJVA, RBI shall construct 2,992 temporary housing units, a reduction from 3,500 units under the JVA. However, it was required to construct 3,520 medium-rise low-cost permanent housing units instead of 3,500 units under the JVA. There was a substantial change in the design of the permanent housing units such that a loft shall be incorporated in each unit so as to increase the living space from 20 to 32 square meters. The additions and changes in the Original Project Component are as follows:

a. 100% use of Smokey Mountain material as dredgefill of Steel Sheet Piles needed longer depth of embedment. b. Concrete Sheet Piles short depth of embedment c. Silt removal approximately Need to remove more than 3.0

Use for

These material and substantial modifications served as justifications for the increase in the share of RBI from 40 hectares to 79 hectares of reclaimed land. Under the JVA, the specific costs of the Project were not stipulated but under the ARJVA, the stipulated cost for Phase I was pegged at six billion six hundred ninety-three million three hundred eighty-seven thousand three hundred sixty-four pesos (PhP 6,693,387,364). In his February 10, 1994 Memorandum, the Chairperson of the SMDRP EXECOM submitted the ARJVA for approval by the OP. After review of said agreement, the OP directed that certain terms and conditions of the ARJVA be further clarified or amended preparatory to its approval. Pursuant to the Presidents directive, the parties reached an agreement on the clarifications and amendments required to be made on the ARJVA On August 11, 1994, the NHA and RBI executed an Amendment To the Amended and Restated Joint Venture Agreement (AARJVA) clarifying certain terms and condition of the ARJVA, which was submitted to President Ramos for approval, to wit: Phase II shall involve the following: a. the construction and operation of an incinerator plant that will conform to the emission standards of the DENR

ORIGINAL CHANGES/REVISIONS 1. TEMPORARY HOUSING Wood/Plywood, ga. 31 G.I. Concrete/Steel Frame Structure Sheet usable life of 3 years, gauge 26 G.I. roofing sheets future 12 SM floor area. use as permanent structures for factory and warehouses mixed 17 sm & 12 sm floor area. 2. MEDIUM RISE MASS HOUSING Box type precast Shelter Conventional and precast component 20 square meter concrete structures, 32 square floor area with 2.4 meter meter floor area with loft floor height;

b. the reclamation and development of 119-hectare area contiguous to that to be reclaimed under Phase I to serve as the enabling component of Phase II, the exact size and configuration of which shall be approved by the SMDRP Committee Other substantial amendments are the following: 4. Paragraph 2.05 of Article II of the ARJVA is hereby amended to read as follows: 2.05. The DEVELOPER shall reclaim seventy nine (79) hectares of the Manila Bay area directly across Radial

Road 10 (R-10) to serve as payment to the DEVELOPER as its asset share for Phase I and to develop such land into commercial area with port facilities; provided, that the port plan shall be integrated with the Philippine Port Authoritys North Harbor plan for the Manila Bay area and provided further, that the final reclamation and port plan for said reclaimed area shall be submitted for approval by the Public Estates Authority and the Philippine Ports Authority, respectively: provided finally, that subject to par. 2.02 above, actual reclamation work may commence upon approval of the final reclamation plan by the Public Estates Authority. xxxx 9. A new paragraph to be numbered 5.05 shall be added to Article V of the ARJVA, and shall read as follows: 5.05. In the event this Agreement is revoked, cancelled or terminated by the AUTHORITY through no fault of the DEVELOPER, the AUTHORITY shall compensate the DEVELOPER for the value of the completed portions of, and actual expenditures on the PROJECT plus a reasonable rate of return thereon, not exceeding that stated in the Cost Estimates of Items of Work previously approved by the SMDRP Executive Committee and the AUTHORITY and stated in this Agreement, as of the date of such revocation, cancellation, or termination, on a schedule to be agreed upon by the parties, provided that said completed portions of Phase I are in accordance with the approved FINAL REPORT. Afterwards, President Ramos issued Proclamation No. 465 dated August 31, 1994 increasing the proposed area for reclamation across R-10 from 40 hectares to 79 hectares, to wit: NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by the law, and as recommended by the SMDRP Executive Committee, do hereby authorize the increase of the area of foreshore or submerged lands of Manila Bay to be reclaimed, as previously authorized under Proclamation No. 39 (s. 1992) and Memorandum Order No. 415 (s. 1992), from Four Hundred Thousand (400,000) square meters, more or less, to Seven Hundred Ninety Thousand (790,000) square meters, more or less. On September 1, 1994, pursuant to Proclamation No. 39, the DENR issued Special Patent No. 3591 conveying in favor of NHA an area of 211,975 square meters covering the Smokey Mountain Dumpsite. In its September 7, 1994 letter to the EXECOM, the OP through then Executive Secretary Teofisto T. Guingona, Jr., approved the ARJVA as amended by the AARJVA. On September 8, 1994, the DENR issued Special Patent 3592 pursuant to Proclamation No. 39, conveying in favor of NHA a 401,485square meter area.

On September 26, 1994, the NHA, RBI, Home Insurance and Guaranty Corporation (HIGC), now known as the Home Guaranty Corporation, and the Philippine National Bank (PNB) executed the Smokey Mountain Asset Pool Formation Trust Agreement (Asset Pool Agreement). Thereafter, a Guaranty Contract was entered into by NHA, RBI, and HIGC. On June 23, 1994, the Legislature passed the Clean Air Act. The Act made the establishment of an incinerator illegal and effectively barred the implementation of the planned incinerator project under Phase II. Thus, the off-site disposal of the garbage at the Smokey Mountain became necessary. The land reclamation was completed in August 1996. Sometime later in 1996, pursuant likewise to Proclamation No. 39, the DENR issued Special Patent No. 3598 conveying in favor of NHA an additional 390,000 square meter area. During the actual construction and implementation of Phase I of the SMDRP, the Inter-Agency Technical Committee found and recommended to the EXECOM on December 17, 1997 that additional works were necessary for the completion and viability of the Project. The EXECOM approved the recommendation and so, NHA instructed RBI to implement the change orders or necessary works. Such necessary works comprised more than 25% of the original contract price and as a result, the Asset Pool incurred direct and indirect costs. Based on C1 12 A of the Implementing Rules and Regulations of PD 1594, a supplemental agreement is required for all change orders and extra work orders, the total aggregate cost of which being more than twenty-five (25%) of the escalated original contract price. The EXECOM requested an opinion from the Department of Justice (DOJ) to determine whether a bidding was required for the change orders and/or necessary works. The DOJ, through DOJ Opinion Nos. 119 and 155 dated August 26, 1993 and November 12, 1993, opined that a rebidding, pursuant to the aforequoted provisions of the implementing rules (referring to PD 1594) would not be necessary where the change orders inseparable from the original scope of the project, in which case, a negotiation with the incumbent contractor may be allowed. Thus, on February 19, 1998, the EXECOM issued a resolution directing NHA to enter into a supplemental agreement covering said necessary works. On March 20, 1998, the NHA and RBI entered into a Supplemental Agreement covering the aforementioned necessary works and submitted it to the President on March 24, 1998 for approval. Outgoing President Ramos decided to endorse the consideration of the Supplemental Agreement to incoming President Joseph E. Estrada. On June 30, 1998, Estrada became the 13th Philippine President. However, the approval of the Supplemental Agreement was unacted upon for five months. As a result, the utilities and the road networks were constructed to cover only the 79-hectare original enabling component granted under the ARJVA. The 220-hectare extension of the 79-hectare area was no longer technically feasible. Moreover, the financial crises and unreliable real estate situation made it difficult to sell the remaining reclaimed lots. The devaluation of the peso and the increase in interest cost led to the substantial increase in the cost of reclamation. On August 1, 1998, the NHA granted RBIs request to suspend work on the SMDRP due to the delay in the approval of the Supplemental Agreement, the consequent absence of an enabling component to cover the cost of the necessary works for the project, and the resulting inability to replenish the Asset Pool funds partially used for the completion of the necessary works.

As of August 1, 1998 when the project was suspended, RBI had already accomplished a portion of the necessary works and change orders which resulted in [RBI] and the Asset Pool incurring advances for direct and indirect cost which amount can no longer be covered by the 79-hectare enabling component under the ARJVA. Repeated demands were made by RBI in its own capacity and on behalf of the asset pool on NHA for payment for the advances for direct and indirect costs subject to NHA validation. In November 1998, President Estrada issued Memorandum Order No. 33 reconstituting the SMDRP EXECOM and further directed it to review the Supplemental Agreement and submit its recommendation on the completion of the SMDRP. The reconstituted EXECOM conducted a review of the project and recommended the amendment of the March 20, 1998 Supplemental Agreement to make it more feasible and to identify and provide new sources of funds for the project and provide for a new enabling component to cover the payment for the necessary works that cannot be covered by the 79-hectare enabling component under the ARJVA. The EXECOM passed Resolution Nos. 99-16-01 and 99-16-02 which approved the modification of the Supplemental Agreement, to wit: a) Approval of 150 hectares additional reclamation in order to make the reclamation feasible as part of the enabling component. b) The conveyance of the 15-hectare NHA Vitas property (actually 17 hectares based on surveys) to the SMDRP Asset Pool. c) The inclusion in the total development cost of other additional, necessary and indispensable infrastructure works and the revision of the original cost stated in the Supplemental Agreement dated March 20, 1998 from PhP 2,953,984,941.40 to PhP 2,969,134,053.13. d) Revision in the sharing agreement between the parties.

On November 19, 2001, the Amended Supplemental Agreement (ASA) was signed by the parties, and on February 28, 2002, the Housing and Urban Development Coordinating Council (HUDCC) submitted the agreement to the OP for approval. In the July 20, 2002 Cabinet Meeting, HUDCC was directed to submit the works covered by the PhP 480 million [advance to the Project] and the ASA to public bidding. On August 28, 2002, the HUDCC informed RBI of the decision of the Cabinet. In its September 2, 2002 letter to the HUDCC Chairman, RBI lamented the decision of the government to bid out the remaining works under the ASA thereby unilaterally terminating the Project with RBI and all the agreements related thereto. RBI demanded the payment of just compensation for all accomplishments and costs incurred in developing the SMDRP plus a reasonable rate of return thereon pursuant to Section 5.05 of the ARJVA and Section 6.2 of the ASA. Consequently, the parties negotiated the terms of the termination of the JVA and other subsequent agreements. On August 27, 2003, the NHA and RBI executed a Memorandum of Agreement (MOA) whereby both parties agreed to terminate the JVA and other subsequent agreements, thus: 1. TERMINATION 1.1 In compliance with the Cabinet directive dated 30 July 2002 to submit the works covered by the P480 Million and the ASA to public bidding, the following agreements executed by and between the NHA and the DEVELOPER are hereby terminated, to wit: a. Joint Venture Agreement (JVA) dated 19 March 1993 b. Amended and Restated Joint Venture Agreement (ARJVA) dated 21 February 1994 c. Amendment and Restated Joint Venture Agreement dated 11 August 1994 d. Supplemental Agreement dated 24 March 1998 e. Amended Supplemental Agreement (ASA) dated 19 November 2001. xxxx 5. SETTLEMENT OF CLAIMS 5.1 Subject to the validation of the DEVELOPERs claims, the NHA hereby agrees to initially compensate the Developer for the abovementioned costs as follows: a. payment Direct to

In the March 23, 2000 OP Memorandum, the EXECOM was authorized to proceed and complete the SMDRP subject to certain guidelines and directives. After the parties in the case at bar had complied with the March 23, 2000 Memorandum, the NHA November 9, 2000 Resolution No. 4323 approved the conveyance of the 17-hectare Vitas property in favor of the existing or a newly created Asset Pool of the project to be developed into a mixed commercial-industrial area, subject to certain conditions. On January 20, 2001, then President Estrada was considered resigned. On the same day, President Gloria M. Arroyo took her oath as the 14th President of the Philippines. As of February 28, 2001, the estimated total project cost of the SMDRP has reached P8.65 billion comprising of P4.78 billion in direct cost and P3.87 billion in indirect cost, subject to validation by the NHA. On August 28, 2001, NHA issued Resolution No. 4436 to pay for the various necessary works/change orders to SMDRP, to effect the corresponding enabling component consisting of the conveyance of the NHAs Vitas Property and an additional 150-hectare reclamation area and to authorize the release by NHA of PhP 480 million as advance to the project to make the Permanent Housing habitable, subject to reimbursement from the proceeds of the expanded enabling component.

DEVELOPER of the amounts herein listed in the following manner: a.1 P250 Million in cash from the escrow account in accordance with Section 2 herewith; a.2 Conveyance of a 3 hectare portion of the Vitas Industrial area immediately after joint determination of the appraised value of the said property in accordance with the procedure herein set forth in the last paragraph of Section 5.3. For purposes of all payments to be made through conveyance of real properties, the parties shall secure from the NHA Board of Directors all documents necessary and sufficient to effect the transfer of title over the properties to be conveyed to RBI, which documents shall be issued within a reasonable period. 5.2 Any unpaid balance of the DEVELOPERS claims determined after the validation process referred to in Section 4 hereof, may be paid in cash, bonds or through the conveyance of properties or any combination thereof. The manner, terms and conditions of payment of the balance shall be specified and agreed upon later within a period of three months from the time a substantial amount representing the unpaid balance has been validated pursuant hereto including, but not limited to the programming of quarterly cash payments to be sourced by the NHA from its budget for debt servicing, from its income or from any other sources. 5.3 In any case the unpaid balance is agreed to be paid, either partially or totally through conveyance of properties, the parties shall agree on which properties shall be subject to conveyance. The NHA and DEVELOPER hereby agree to determine the valuation of the properties to be conveyed by getting the average of the appraisals to be made by two (2) mutually acceptable independent appraisers.

hectare land which it acquired from the NHA being a portion of the reclaimed land of the SMDRP. Corresponding certificates of titles were issued to HCPTI, namely: TCT Nos. 251355, 251356, 251357, and 251358. Due to HCPTIs failure to obtain a license to handle foreign containerized cargo from PPA, it suffered a net income loss of PhP 132,621,548 in 2002 and a net loss of PhP 15,540,063 in 2003. The Project Governing Board of the Asset Pool later conveyed by way of dacion en pago a number of HCPTI shares to RBI in lieu of cash payment for the latters work in SMDRP. On August 5, 2004, former Solicitor General Francisco I. Chavez, filed the instant petition which impleaded as respondents the NHA, RBI, RII Holdings, Inc. (RHI), HCPTI, and Mr. Reghis Romero II, raising constitutional issues. The NHA reported that thirty-four (34) temporary housing structures and twenty-one (21) permanent housing structures had been turned over by respondent RBI. It claimed that 2,510 beneficiary-families belonging to the poorest of the poor had been transferred to their permanent homes and benefited from the Project. The Issues The grounds presented in the instant petition are: I NEITHER RESPONDENT NHA NOR RESPONDENT R-II BUILDERS MAY VALIDLY RECLAIM FORESHORE AND SUBMERGED LAND BECAUSE: 1. RESPONDENT NHA AND R-II BUILDERS WERE NEVER GRANTED ANY POWER AND AUTHORITY TO RECLAIM LANDS OF THE PUBLIC DOMAIN AS THIS POWER IS VESTED EXCLUSIVELY WITH THE PEA. 2. EVEN ASSUMING THAT RESPONDENTS NHA AND R-II BUILDERS WERE GIVEN THE POWER AND AUTHORITY TO RECLAIM FORESHORE AND SUBMERGED LAND, THEY WERE NEVER GIVEN THE AUTHORITY BY THE DENR TO DO SO. II RESPONDENT R-II BUILDERS CANNOT ACQUIRE THE RECLAIMED FORESHORE AND SUBMERGED LAND AREAS BECAUSE: 1. THE RECLAIMED FORESHORE AND SUBMERGED PARCELS OF LAND ARE INALIENABLE PUBLIC LANDS WHICH ARE BEYOND THE COMMERCE OF MAN. 2. ASSUMING ARGUENDO THAT THE SUBJECT RECLAIMED FORESHORE AND SUBMERGED PARCELS OF LAND WERE ALREADY DECLARED ALIENABLE LANDS OF THE PUBLIC DOMAIN, RESPONDENT R-II BUILDERS STILL COULD NOT ACQUIRE THE SAME BECAUSE THERE WAS NEVER ANY DECLARATION THAT THE SAID LANDS WERE NO LONGER NEEDED FOR PUBLIC USE.

Meanwhile, respondent Harbour Centre Port Terminal, Inc. (HCPTI) entered into an agreement with the asset pool for the development and operations of a port in the Smokey Mountain Area which is a major component of SMDRP to provide a source of livelihood and employment for Smokey Mountain residents and spur economic growth. A Subscription Agreement was executed between the Asset Pool and HCPTI whereby the asset pool subscribed to 607 million common shares and 1,143 million preferred shares of HCPTI. The HCPTI preferred shares had a premium and penalty interest of 7.5% per annum and a mandatory redemption feature. The asset pool paid the subscription by conveying to HCPTI a 10-

3. EVEN ASSUMING THAT THE SUBJECT RECLAIMED LANDS ARE ALIENABLE AND NO LONGER NEEDED FOR PUBLIC USE, RESPONDENT R-II BUILDERS STILL CANNOT ACQUIRE THE SAME BECAUSE THERE WAS NEVER ANY LAW AUTHORIZING THE SALE THEREOF. 4. THERE WAS NEVER ANY PUBLIC BIDDING AWARDING OWNERSHIP OF THE SUBJECT LAND TO RESPONDENT R-II BUILDERS. 5. ASSUMING THAT ALL THE REQUIREMENTS FOR A VALID TRANSFER OF ALIENABLE PUBLIC HAD BEEN PERFORMED, RESPONDENT R-II BUILDERS, BEING PRIVATE CORPORATION IS NONETHELESS EXPRESSLYPROHIBITED BY THE PHILIPPINE CONSTITUTION TO ACQUIRE LANDS OF THE PUBLIC DOMAIN.

utilized in the Project by means of Smokey Mountain Project Participation Certificates (SMPPCs) bought by some government agencies. Hence, petitioner, as a taxpayer, is a proper party to the instant petition before the court. Whether petitioners direct recourse to this Court was proper Respondents are one in asserting that petitioner circumvents the principle of hierarchy of courts in his petition. Judicial hierarchy was made clear in the case of People v. Cuaresma, thus: There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. x x x The OSG claims that the jurisdiction over petitions for prohibition and mandamus is concurrent with other lower courts like the Regional Trial Courts and the Court of Appeals. Respondent NHA argues that the instant petition is misfiled because it does not introduce special and important reasons or exceptional and compelling circumstances to warrant direct recourse to this Court and that the lower courts are more equipped for factual issues since this Court is not a trier of facts. Respondents RBI and RHI question the filing of the petition as this Court should not be unduly burdened with repetitions, invocation of jurisdiction over constitutional questions it had previously resolved and settled. In the light of existing jurisprudence, we find paucity of merit in respondents postulation. While direct recourse to this Court is generally frowned upon and discouraged, we have however ruled in Santiago v. Vasquez that such resort to us may be allowed in certain situations, wherein this Court ruled that petitions for certiorari, prohibition, or mandamus, though cognizable by other courts, may directly be filed with us if the redress desired cannot be obtained in the appropriate courts or where exceptional compelling circumstances justify availment of a remedy within and calling for the exercise of [this Courts] primary jurisdiction. The instant petition challenges the constitutionality and legality of the SMDRP involving several hectares of government land and hundreds of millions of funds of several government agencies. Moreover, serious constitutional challenges are made on the different aspects of the Project which allegedly affect the right of Filipinos to the distribution of natural resources in the country and the right to information of a citizenmatters which have been considered to be of extraordinary significance and grave consequence to the public in general. These concerns in the instant action compel us to turn a blind eye to the judicial structure meant to provide an orderly dispensation of justice and consider the instant petition as a justified deviation from an established precept. Core factual matters undisputed

III RESPONDENT HARBOUR, BEING A PRIVATE CORPORATION WHOSE MAJORITY STOCKS ARE OWNED AND CONTROLLED BY RESPONDENT ROMEROS CORPORATIONS R-II BUILDERS AND R-II HOLDINGS IS DISQUALIFIED FROM BEING A TRANSFEREE OF PUBLIC LAND. IV RESPONDENTS MUST BE COMPELLED TO DISCLOSE ALL INFORMATION RELATED TO THE SMOKEY MOUNTAIN DEVELOPMENT AND RECLAMATION PROJECT.

The Courts Ruling Before we delve into the substantive issues raised in this petition, we will first deal with several procedural matters raised by respondents. Whether petitioner has the requisite locus standi to file this case Respondents argue that petitioner Chavez has no legal standing to file the petition. Only a person who stands to be benefited or injured by the judgment in the suit or entitled to the avails of the suit can file a complaint or petition. Respondents claim that petitioner is not a proper party-ininterest as he was unable to show that he has sustained or is in immediate or imminent danger of sustaining some direct and personal injury as a result of the execution and enforcement of the assailed contracts or agreements. Moreover, they assert that not all government contracts can justify a taxpayers suit especially when no public funds were utilized in contravention of the Constitution or a law. We explicated in Chavez v. PCGG that in cases where issues of transcendental public importance are presented, there is no necessity to show that petitioner has experienced or is in actual danger of suffering direct and personal injury as the requisite injury is assumed. We find our ruling in Chavez v. PEA as conclusive authority on locus standi in the case at bar since the issues raised in this petition are averred to be in breach of the fair diffusion of the countrys natural resources and the constitutional right of a citizen to information which have been declared to be matters of transcendental public importance. Moreover, the pleadings especially those of respondents readily reveal that public funds have been indirectly

Respondents next challenge the projected review by this Court of the alleged factual issues intertwined in the issues propounded by petitioner. They listed a copious number of questions seemingly factual in nature which would make this Court a trier of facts. We find the position of respondents bereft of merit. For one, we already gave due course to the instant petition in our January 18, 2005 Resolution. In said issuance, the parties were required to make clear and concise statements of established facts upon which our decision will be based. Secondly, we agree with petitioner that there is no necessity for us to make any factual findings since the facts needed to decide the instant petition are well established from the admissions of the parties in their pleadings and those derived from the documents appended to said submissions. Indeed, the core facts which are the subject matter of the numerous issues raised in this petition are undisputed. Now we will tackle the issues that prop up the instant petition. Since petitioner has cited our decision in PEA as basis for his postulations in a number of issues, we first resolve the queryis PEA applicable to the case at bar? A juxtaposition of the facts in the two cases constrains the Court to rule in the negative. The Court finds that PEA is not a binding precedent to the instant petition because the facts in said case are substantially different from the facts and circumstances in the case at bar, thus: (1) The reclamation project in PEA was undertaken through a JVA entered into between PEA and AMARI. The reclamation project in the instant NHA case was undertaken by the NHA, a national government agency in consultation with PEA and with the approval of two Philippine Presidents; (2) In PEA, AMARI and PEA executed a JVA to develop the Freedom Islands and reclaim submerged areas without public bidding on April 25, 1995. In the instant NHA case, the NHA and RBI executed a JVA after RBI was declared the winning bidder on August 31, 1992 as the JVA partner of the NHA in the SMDRP after compliance with the requisite public bidding. (3) In PEA, there was no law or presidential proclamation classifying the lands to be reclaimed as alienable and disposal lands of public domain. In this RBI case, MO 415 of former President Aquino and Proclamation No. 39 of then President Ramos, coupled with Special Patents Nos. 3591, 3592, and 3598, classified the reclaimed lands as alienable and disposable; (4) In PEA, the Chavez petition was filed before the amended JVA was executed by PEA and AMARI. In this NHA case, the JVA and subsequent amendments were already substantially implemented. Subsequently, the Project was terminated through a MOA signed on August 27, 2003. Almost one year later on August 5, 2004, the Chavez petition was filed; (5) In PEA, AMARI was considered to be in bad faith as it signed the amended JVA after the Chavez petition was filed with the Court and after Senate Committee Report No. 560 was issued finding that the subject lands are inalienable lands of public domain. In the instant petition, RBI and other respondents are considered to have signed the agreements in good faith as the Project was terminated even before the Chavez petition was filed;

(6) The PEA-AMARI JVA was executed as a result of direct negotiation between the parties and not in accordance with the BOT Law. The NHA-RBI JVA and subsequent amendments constitute a BOT contract governed by the BOT Law; an (7) In PEA, the lands to be reclaimed or already reclaimed were transferred to PEA, a government entity tasked to dispose of public lands under Executive Order No. (EO) 525. In the NHA case, the reclaimed lands were transferred to NHA, a government entity NOT tasked to dispose of public land and therefore said alienable lands were converted to patrimonial lands upon their transfer to NHA. Thus the PEA Decision cannot be considered an authority or precedent to the instant case. The principle of stare decisis has no application to the different factual setting of the instant case. We will now dwell on the substantive issues raised by petitioner. After a perusal of the grounds raised in this petition, we find that most of these issues are moored on our PEA Decision which, as earlier discussed, has no application to the instant petition. For this reason alone, the petition can already be rejected. Nevertheless, on the premise of the applicability of said decision to the case at bar, we will proceed to resolve said issues. First Issue: Whether respondents NHA and RBI have been granted the power and authority to reclaim lands of the public domain as this power is vested exclusively in PEA as claimed by petitioner Petitioner contends that neither respondent NHA nor respondent RBI may validly reclaim foreshore and submerged land because they were not given any power and authority to reclaim lands of the public domain as this power was delegated by law to PEA. Asserting that existing laws did not empower the NHA and RBI to reclaim lands of public domain, the Public Estates Authority (PEA), petitioner claims, is the primary authority for the reclamation of all foreshore and submerged lands of public domain, and relies on PEA where this Court held: Moreover, Section 1 of Executive Order No. 525 provides that PEA shall be primarily responsible for integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government. The same section also states that [A]ll reclamation projects shall be approved by the President upon recommendation of the PEA, and shall be undertaken by the PEA or through a proper contract executed by it with any person or entity; x x x. Thus, under EO No. 525, in relation to PD No. 3-A and PD No. 1084, PEA became the primary implementing agency of the National Government to reclaim foreshore and submerged lands of the public domain. EO No. 525 recognized PEA as the government entity to undertake the reclamation of lands and ensure their maximum utilization in promoting public welfare and interests. Since large portions of these reclaimed lands would obviously be needed for public service, there must be a formal declaration segregating reclaimed lands no longer needed for public service from those still needed for public service.

In the Smokey Mountain Project, petitioner clarifies that the reclamation was not done by PEA or through a contract executed by PEA with another person or entity but by the NHA through an agreement with respondent RBI. Therefore, he concludes that the reclamation is null and void.

Petitioners contention has no merit. EO 525 reads: Section 1. The Public Estates Authority (PEA) shall be primarily responsible for integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government. All reclamation projects shall be approved by the President upon recommendation of the PEA, and shall be undertaken by the PEA or through a proper contract executed by it with any person or entity; Provided, that, reclamation projects of any national government agency or entity authorized under its charter shall be undertaken in consultation with the PEA upon approval of the President. (Emphasis supplied.) The aforequoted provision points to three (3) requisites for a legal and valid reclamation project, viz: (1) (2) (3) approval by the President; favorable recommendation of PEA; and undertaken by any of the following: a. b. by PEA by any person or entity pursuant to a contract it executed with PEA by the National Government agency or entity authorized under its charter to reclaim lands subject to with PEA

Plan and Reclamation of the Area across R-10 through a private sector joint venture scheme at the least cost to government under Section 3. For his part, then President Ramos issued Proclamation No. 39 (s. 1992) which expressly reserved the Smokey Mountain Area and the Reclamation Area for a housing project and related commercial/industrial development. Moreover, President Ramos issued Proclamation No. 465 (s. 1994) which authorized the increase of the Reclamation Area from 40 hectares of foreshore and submerged land of the Manila Bay to 79 hectares. It speaks of the reclamation of 400,000 square meters, more or less, of the foreshore and submerged lands of Manila Bay adjoining R-10 as an enabling component of the SMDRP. As a result of Proclamations Nos. 39 and 465, Special Patent No. 3591 covering 211,975 square meters of Smokey Mountain, Special Patent No. 3592 covering 401,485 square meters of reclaimed land, and Special Patent No. 3598 covering another 390,000 square meters of reclaimed land were issued by the DENR. Thus, the first requirement of presidential imprimatur on the SMDRP has been satisfied. 2. The requisite favorable endorsement of the reclamation phase was impliedly granted by PEA. President Aquino saw to it that there was coordination of the project with PEA by designating its general manager as member of the EXECOM tasked to supervise the project implementation. The assignment was made in Sec. 2 of MO 415 which provides: Section 2. An Executive Committee is hereby created to oversee the implementation of the Plan, chaired by the NCR-CORD, with the heads of the following agencies as members: The National Housing Authority, the City of Manila, the Department of Public Works and Highways, the Public Estates Authority, the Philippine Ports Authority, the Department of Environment and Natural Resources and the Development Bank of the Philippines. (Emphasis supplied.)

c. consultation

Without doubt, PEA under EO 525 was designated as the agency primarily responsible for integrating, directing, and coordinating all reclamation projects. Primarily means mainly, principally, mostly, generally. Thus, not all reclamation projects fall under PEAs authority of supervision, integration, and coordination. The very charter of PEA, PD 1084, does not mention that PEA has the exclusive and sole power and authority to reclaim lands of public domain. EO 525 even reveals the exceptionreclamation projects by a national government agency or entity authorized by its charter to reclaim land. One example is EO 405 which authorized the Philippine Ports Authority (PPA) to reclaim and develop submerged areas for port related purposes. Under its charter, PD 857, PPA has the power to reclaim, excavate, enclose or raise any of the lands vested in it. Thus, while PEA under PD 1084 has the power to reclaim land and under EO 525 is primarily responsible for integrating, directing and coordinating reclamation projects, such authority is NOT exclusive and such power to reclaim may be granted or delegated to another government agency or entity or may even be undertaken by the National Government itself, PEA being only an agency and a part of the National Government. Let us apply the legal parameters of Sec. 1, EO 525 to the reclamation phase of SMDRP. After a scrutiny of the facts culled from the records, we find that the project met all the three (3) requirements, thus: 1. There was ample approval by the President of the Philippines; as a matter of fact, two Philippine Presidents approved the same, namely: Presidents Aquino and Ramos. President Aquino sanctioned the reclamation of both the SMDRP housing and commercial-industrial sites through MO 415 (s. 1992) which approved the SMDRP under Sec. 1 and directed NHA x x x to implement the Smokey Mountain Development

The favorable recommendation by PEA of the JVA and subsequent amendments were incorporated as part of the recommendations of the EXECOM created under MO 415. While there was no specific recommendation on the SMDRP emanating solely from PEA, we find that the approbation of the Project and the land reclamation as an essential component by the EXECOM of which PEA is a member, and its submission of the SMDRP and the agreements on the Project to the President for approval amply met the second requirement of EO 525. 3. The third element was also presentthe reclamation was undertaken either by PEA or any person or entity under contract with PEA or by the National Government agency or entity authorized under its charter to reclaim lands subject to consultation with PEA. It cannot be disputed that the reclamation phase was not done by PEA or any person or entity under contract with PEA. However, the reclamation was implemented by the NHA, a national government agency whose authority to reclaim lands under consultation with PEA is derived from its charter PD 727 and other pertinent lawsRA 7279 and RA 6957 as amended by RA 7718. While the authority of NHA to reclaim lands is challenged by petitioner, we find that the NHA had more than enough authority to do so under existing laws. While PD 757, the charter of NHA, does not explicitly mention reclamation in any of the listed powers of the agency, we rule that the NHA has an implied power to reclaim land as this is vital or incidental to effectively, logically, and successfully implement an urban land reform and housing program enunciated in Sec. 9 of Article XIII of the 1987 Constitution.

Basic in administrative law is the doctrine that a government agency or office has express and implied powers based on its charter and other pertinent statutes. Express powers are those powers granted, allocated, and delegated to a government agency or office by express provisions of law. On the other hand, implied powers are those that can be inferred or are implicit in the wordings of the law or conferred by necessary or fair implication in the enabling act. In Angara v. Electoral Commission , the Court clarified and stressed that when a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred by necessary implication. It was also explicated that when the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its functions. The power to reclaim on the part of the NHA is implicit from PD 757, RA 7279, MO 415, RA 6957, and PD 3-A, viz: 1. NHAs power to reclaim derived from PD 757 provisions:

PD 570 dated October 30, 1974 created the TFDA, which defined its objectives, powers, and functions. Sec. 2 provides:

Section 2. Objectives and Purposes. The Authority shall have the following purposes and objectives: a) To undertake all manner of activity, business or development projects for the establishment of harmonious, comprehensive, integrated and healthy living community in the Tondo Foreshoreland and its resettlement site; b) To undertake and promote the physical and socio-economic amelioration of the Tondo Foreshore residents in particular and the nation in general (Emphasis supplied.) The powers and functions are contained in Sec. 3, to wit: a) To develop and implement comprehensive and integrated urban renewal programs for the Tondo Foreshore and Dagat-dagatan lagoon and/or any other additional/alternative resettlement site and to formulate and enforce general and specific policies for its development which shall ensure reasonable degree of compliance with environmental standards. b) To prescribe guidelines and standards for the reservation, conservation and utilization of public lands covering the Tondo Foreshore land and its resettlement sites; c) To construct, acquire, own, lease, operate and maintain infrastructure facilities, housing complex, sites and services; d) To determine, regulate and supervise the establishment and operation of housing, sites, services and commercial and industrial complexes and any other enterprises to be constructed or established within the Tondo Foreshore and its resettlement sites; e) To undertake and develop, by itself or through joint ventures with other public or private entities, all or any of the different phases of development of the Tondo Foreshore land and its resettlement sites; f) To acquire and own property, propertyrights and interests, and encumber or otherwise dispose of the same as it may deem appropriate (Emphasis supplied. From the foregoing provisions, it is readily apparent that the TFDA has the explicit power to develop public lands covering the Tondo foreshore land and any other additional and alternative resettlement sites under letter b, Sec. 3 of PD 570. Since the additional and/or alternative sites adjacent to Tondo foreshore land cover foreshore and submerged areas, the reclamation of said areas is necessary in order to convert them into a comprehensive and integrated resettlement housing project for the slum dwellers and squatters of Tondo. Since the powers of TFDA were assumed by the NHA, then the NHA has the power to reclaim lands in the Tondo foreshore area which covers the 79-hectare land subject of Proclamations Nos. 39 and 465 and Special Patents Nos. 3592 and 3598 c. Sec. 6 of PD 757 delineates the functions and powers of the NHA which embrace the authority to reclaim land, thus:

a. Sec. 3 of PD 757 implies that reclamation may be resorted to in order to attain the goals of NHA: Section 3. Progress and Objectives. The Authority shall have the following purposes and objectives: xxxx b) To undertake housing, development, resettlement or other activities as would enhance the provision of housing to every Filipino; To harness and promote private participation in housing ventures in terms of capital expenditures, land, expertise, financing and other facilities for the sustained growth of the housing industry. (Emphasis supplied.)

c)

Land reclamation is an integral part of the development of resources for some of the housing requirements of the NHA. Private participation in housing projects may also take the form of land reclamation. b. Sec. 5 of PD 757 serves as proof that the NHA, as successor of the Tondo Foreshore Development Authority (TFDA), has the power to reclaim, thus: Section 5. Dissolution of Existing Housing Agencies. The People's Homesite and Housing Corporation (PHHC), the Presidential Assistant on Housing Resettlement Agency (PAHRA), the Tondo Foreshore Development Authority (TFDA), the Central Institute for the Training and Relocation of Urban Squatters (CITRUS), the Presidential Committee for Housing and Urban Resettlement (PRECHUR), Sapang Palay Development Committee, Inter-Agency Task Force to Undertake the Relocation of Families in Barrio Nabacaan, Villanueva, Misamis Oriental and all other existing government housing and resettlement agencies, task forces and ad-hoc committees, are hereby dissolved. Their powers and functions, balance of appropriations, records, assets, rights, and choses in action, are transferred to, vested in, and assumed by the Authority. x x x (Emphasis supplied.)

Sec. 6. Powers and functions of the Authority . The Authority shall have the following powers and functions to be exercised by the Board in accordance with its established national human settlements plan prepared by the Human Settlements Commission: (a) Develop and implement the comprehensive and integrated housing program provided for in Section hereof; xxxx (c) Prescribe guidelines and standards for the reservation, conservation and utilization of public lands identified for housing and resettlement; xxxx (e) Develop and undertake housing development and/or resettlement projects through joint ventures or other arrangements with public and private entities; xxxx (k) Enter into contracts whenever necessary under such terms and conditions as it may deem proper and reasonable; (l) Acquire property rights and interests and encumber or otherwise dispose the same as it may deem appropriate; xxxx (s) Perform such other acts not inconsistent with this Decree, as may be necessary to effect the policies and objectives herein declared. (Emphasis supplied.)

not be limited to those involving transfer of ownership in fee simple but shall include lease, with option to purchase, usufruct or such other variations as the local government units or the National Housing Authority may deem most expedient in carrying out the purposes of this Act. xxxx Section 29. Resettlement.With two (2) years from the effectivity of this Act, the local government units, in coordination with the National Housing Authority, shall implement the relocation and resettlement of persons living in danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and in other public places as sidewalks, roads, parks, and playgrounds. The local government unit, in coordination with the National Housing Authority, shall provide relocation or resettlement sites with basic services and facilities and access to employment and livelihood opportunities sufficient to meet the basic needs of the affected families. (Emphasis supplied.) Lands belonging to the National Government include foreshore and submerged lands which can be reclaimed to undertake housing development and resettlement projects. 3. MO 415 explains the undertaking of the NHA in SMDRP: WHEREAS, Memorandum Order No. 161-A mandated the National Housing Authority to conduct feasibility studies and develop low-cost housing projects at the dumpsites of Metro Manila; WHEREAS, the National Housing Authority has presented a viable Conceptual Plan to convert the Smokey Mountain dumpsite into a habitable housing project inclusive of the reclamation area across R-10 as enabling component of the Project; WHEREAS, the said Plan requires the coordinated and synchronized efforts of the City of Manila and other government agencies and instrumentalities to ensure effective and efficient implementation; WHEREAS, the government encourages private sector initiative in the implementation of its projects. (Emphasis supplied.) Proceeding from these whereas clauses, it is unequivocal that reclamation of land in the Smokey Mountain area is an essential and vital power of the NHA to effectively implement its avowed goal of developing low-cost housing units at the Smokey Mountain dumpsites. The interpretation made by no less than the President of the Philippines as Chief of the Executive Branch, of which the NHA is a part, must necessarily command respect and much weight and credit. 4. RA 6957 as amended by RA 7718the BOT Lawserves as an exception to PD 1084 and EO 525. Based on the provisions of the BOT Law and Implementing Rules and Regulations, it is unequivocal that all government infrastructure agencies like the NHA can undertake infrastructure or development projects using the contractual arrangements prescribed by the law, and land reclamation is one of the projects that can be resorted to in the BOT project implementation under the February 10, 1992 Joint Resolution No. 3 of the 8th Congress.

The NHAs authority to reclaim land can be inferred from the aforequoted provisions. It can make use of public lands under letter (c) of Sec. 6 which includes reclaimed land as site for its comprehensive and integrated housing projects under letter (a) which can be undertaken through joint ventures with private entities under letter (e). Taken together with letter (s) which authorizes NHA to perform such other activities necessary to effect the policies and objectives of PD 757, it is safe to conclude that the NHAs power to reclaim lands is a power that is implied from the exercise of its explicit powers under Sec. 6 in order to effectively accomplish its policies and objectives under Sec. 3 of its charter. Thus, the reclamation of land is an indispensable component for the development and construction of the SMDRP housing facilities. 2. NHAs implied power to reclaim land is enhanced by RA 7279.

PD 757 identifies NHAs mandate to [d]evelop and undertake housing development and/or resettlement projects through joint ventures or other arrangements with public and private entities. The power of the NHA to undertake reclamation of land can be inferred from Secs. 12 and 29 of RA 7279, which provid Section 12. Disposition of Lands for Socialized Housing.The National Housing Authority, with respect to lands belonging to the National Government, and the local government units with respect to other lands within their respective localities, shall coordinate with each other to formulate and make available various alternative schemes for the disposition of lands to the beneficiaries of the Program. These schemes shall

From the foregoing considerations, we find that the NHA has ample implied authority to undertake reclamation projects. Even without an implied power to reclaim lands under NHAs charter, we rule that the authority granted to NHA, a national government agency, by the President under PD 3-A reinforced by EO 525 is more than sufficient statutory basis for the reclamation of lands under the SMDRP. PD 3-A is a law issued by then President Ferdinand E. Marcos under his martial law powers on September 23, 1972. It provided that [t]he provisions of any law to the contrary notwithstanding, the reclamation of areas, underwater, whether foreshore or inland, shall be limited to the National Government or any person authorized by it under the proper contract. It repealed, in effect, RA 1899 which previously delegated the right to reclaim lands to municipalities and chartered cities and revested it to the National Government. Under PD 3-A, national government can only mean the Executive Branch headed by the President. It cannot refer to Congress as it was dissolved and abolished at the time of the issuance of PD 3-A on September 23, 1972. Moreover, the Executive Branch is the only implementing arm in the government with the equipment, manpower, expertise, and capability by the very nature of its assigned powers and functions to undertake reclamation projects. Thus, under PD 3-A, the Executive Branch through the President can implement reclamation of lands through any of its departments, agencies, or offices. Subsequently, on February 4, 1977, President Marcos issued PD 1084 creating the PEA, which was granted, among others, the power to reclaim land, including foreshore and submerged areas by dredging, filling or other means or to acquire reclaimed lands. The PEAs power to reclaim is not however exclusive as can be gleaned from its charter, as the President retained his power under PD 3-A to designate another agency to reclaim lands. On February 14, 1979, EO 525 was issued. It granted PEA primary responsibility for integrating, directing, and coordinating reclamation projects for and on behalf of the National Government although other national government agencies can be designated by the President to reclaim lands in coordination with the PEA. Despite the issuance of EO 525, PD 3A remained valid and subsisting. Thus, the National Government through the President still retained the power and control over all reclamation projects in the country. The power of the National Government through the President over reclamation of areas, that is, underwater whether foreshore or inland, was made clear in EO 543 which took effect on June 24, 2006. Under EO 543, PEA was renamed the Philippine Reclamation Authority (PRA) and was granted the authority to approve reclamation projects, a power previously reposed in the President under EO 525. EO 543 reads: Section 1. The power of the President to approve reclamation projects is hereby delegated to the Philippine Reclamation Authority [formerly PEA], through its governing board, subject to compliance with existing laws and rules and subject to the condition that reclamation contracts to be executed with any person or entity go through public bidding. Section 2. Nothing in the Order shall be construed as diminishing the Presidents authority to modify, amend or nullify PRAs action. Section 3. All executive issuances inconsistent with this Executive Order are hereby repealed or amended accordingly. (Emphasis supplied.)

Sec. 2 of EO 543 strengthened the power of control and supervision of the President over reclamation of lands as s/he can modify, amend, or nullify the action of PEA (now PRA). From the foregoing issuances, we conclude that the Presidents delegation to NHA, a national government agency, to reclaim lands under the SMDRP, is legal and valid, firmly anchored on PD 3-A buttressed by EO 525 notwithstanding the absence of any specific grant of power under its charter, PD 757. Second Issue: Whether respondents NHA and RBI were given the power and authority by DENR to reclaim foreshore and submerged lands Petitioner Chavez puts forth the view that even if the NHA and RBI were granted the authority to reclaim, they were not authorized to do so by the DENR. Again, reliance is made on our ruling in PEA where it was held that the DENRs authority is necessary in order for the government to validly reclaim foreshore and submerged lands. In PEA, we expounded in this manner: As manager, conservator and overseer of the natural resources of the State, DENR exercises supervision and control over alienable and disposable public lands. DENR also exercises exclusive jurisdiction on the management and disposition of all lands of the public domain. Thus, DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs authorization from DENR before PEA can undertake reclamation projects in Manila Bay, or in any part of the country. DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence, DENR decides whether reclaimed lands of PEA should be classified as alienable under Sections 6 and 7 of CA No. 141. Once DENR decides that the reclaimed lands should be so classified, it then recommends to the President the issuance of a proclamation classifying the lands as alienable or disposable lands of the public domain open to disposition. We note that then DENR Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the Revised Administrative Code and Sections 6 and 7 of CA No. 141. In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is vested with the power to undertake the physical reclamation of areas under water, whether directly or through private contractors. DENR is also empowered to classify lands of the public domain into alienable or disposable lands subject to the approval of the President. On the other hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.

Despite our finding that PEA is not a precedent to the case at bar, we find after all that under existing laws, the NHA is still required to procure DENRs authorization before a reclamation project in Manila Bay or in any part of the Philippines can be undertaken. The requirement applies to PEA, NHA, or any other government agency or office granted with such power under the law.

Notwithstanding the need for DENR nevertheless find petitioners position bereft of merit.

permission,

we

the specific public purpose indicated until otherwise provided by law or proclamation. (Emphasis supplied.) President Aquino reserved the area of the Smokey Mountain dumpsite for settlement and issued MO 415 authorizing the implementation of the Smokey Mountain Development Project plus the reclamation of the area across R-10. Then President Ramos issued Proclamation No. 39 covering the 21-hectare dumpsite and the 40-hectare commercial/industrial area, and Proclamation No. 465 and MO 415 increasing the area of foreshore and submerged lands of Manila Bay to be reclaimed from 40 to 79 hectares. Having supervision and control over the DENR, both Presidents directly assumed and exercised the power granted by the Revised Administrative Code to the DENR Secretary to authorize the NHA to reclaim said lands. What can be done indirectly by the DENR can be done directly by the President. It would be absurd if the power of the President cannot be exercised simply because the head of a department in the executive branch has not acted favorably on a project already approved by the President. If such arrangement is allowed then the department head will become more powerful than the President. 2. Under Sec. 2 of MO 415, the DENR is one of the members of the EXECOM chaired by the NCR-CORD to oversee the implementation of the Project. The EXECOM was the one which recommended approval of the project plan and the joint venture agreements. Clearly, the DENR retained its power of supervision and control over the laws affected by the Project since it was tasked to facilitate the titling of the Smokey Mountain and of the area to be reclaimed, which shows that it had tacitly given its authority to the NHA to undertake the reclamation. 3. Former DENR Secretary Angel C. Alcala issued Special Patents Nos. 3591 and 3592 while then Secretary Victor O. Ramos issued Special Patent No. 3598 that embraced the areas covered by the reclamation. These patents conveyed the lands to be reclaimed to the NHA and granted to said agency the administration and disposition of said lands for subdivision and disposition to qualified beneficiaries and for development for mix land use (commercial/industrial) to provide employment opportunities to on-site families and additional areas for port related activities. Such grant of authority to administer and dispose of lands of public domain under the SMDRP is of course subject to the powers of the EXECOM of SMDRP, of which the DENR is a member. 4. The issuance of ECCs by the DENR for SMDRP is but an exercise of its power of supervision and control over the lands of public domain covered by the Project. Based on these reasons, it is clear that the DENR, through its acts and issuances, has ratified and confirmed the reclamation of the subject lands for the purposes laid down in Proclamations Nos. 39 and 465. Third Issue: Whether respondent RBI can acquire reclaimed foreshore and submerged lands considered as inalienable and outside the commerce of man Petitioner postulates that respondent RBI cannot acquire the reclaimed foreshore and submerged areas as these are inalienable public lands beyond the commerce of man based on Art. 1409 of the Civil Code which provides: Article 1409. The following contracts are inexistent and void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; xxxx (7) Those expressly prohibited or declared void by law.

The DENR is deemed to have granted the authority to reclaim in the Smokey Mountain Project for the following reasons: 1. Sec. 17, Art. VII of the Constitution provides that the President shall have control of all executive departments, bureaus and offices. The President is assigned the task of seeing to it that all laws are faithfully executed. Control, in administrative law, means the power of an officer to alter, modify, nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter. As such, the President can exercise executive power motu proprio and can supplant the act or decision of a subordinate with the Presidents own. The DENR is a department in the executive branch under the President, and it is only an alter ego of the latter. Ordinarily the proposed action and the staff work are initially done by a department like the DENR and then submitted to the President for approval. However, there is nothing infirm or unconstitutional if the President decides on the implementation of a certain project or activity and requires said department to implement it. Such is a presidential prerogative as long as it involves the department or office authorized by law to supervise or execute the Project. Thus, as in this case, when the President approved and ordered the development of a housing project with the corresponding reclamation work, making DENR a member of the committee tasked to implement the project, the required authorization from the DENR to reclaim land can be deemed satisfied. It cannot be disputed that the ultimate power over alienable and disposable public lands is reposed in the President of the Philippines and not the DENR Secretary. To still require a DENR authorization on the Smokey Mountain when the President has already authorized and ordered the implementation of the Project would be a derogation of the powers of the President as the head of the executive branch. Otherwise, any department head can defy or oppose the implementation of a project approved by the head of the executive branch, which is patently illegal and unconstitutional. In Chavez v. Romulo, we stated that when a statute imposes a specific duty on the executive department, the President may act directly or order the said department to undertake an activity, thus: [A]t the apex of the entire executive officialdom is the President. Section 17, Article VII of the Constitution specifies [her] power as Chief executive departments, bureaus and offices. [She] shall ensure that the laws be faithfully executed. As Chief Executive, President Arroyo holds the steering wheel that controls the course of her government. She lays down policies in the execution of her plans and programs. Whatever policy she chooses, she has her subordinates to implement them. In short, she has the power of control. Whenever a specific function is entrusted by law or regulation to her subordinate, she may act directly or merely direct the performance of a duty x x x. Such act is well within the prerogative of her office (emphasis supplied). Moreover, the power to order the reclamation of lands of public domain is reposed first in the Philippine President. The Revised Administrative Code of 1987 grants authority to the President to reserve lands of public domain for settlement for any specific purpose, thus: Section 14. Power to Reserve Lands of the Public and Private Domain of the Government.(1) The President shall have the power to reserve for settlement or public use, and for specific public purposes, any of the lands of the public domain , the use of which is not otherwise directed by law. The reserved land shall thereafter remain subject to

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived. Secs. 2 and 3, Art. XII of the Constitution declare that all natural resources are owned by the State and they cannot be alienated except for alienable agricultural lands of the public domain. One of the States natural resources are lands of public domain which include reclaimed lands. Petitioner contends that for these reclaimed lands to be alienable, there must be a law or presidential proclamation officially classifying these reclaimed lands as alienable and disposable and open to disposition or concession. Absent such law or proclamation, the reclaimed lands cannot be the enabling component or consideration to be paid to RBI as these are beyond the commerce of man. We are not convinced of petitioners postulation. The reclaimed lands across R-10 were classified alienable and disposable lands of public domain of the State for the following reasons, viz: First, there were three (3) presidential proclamations classifying the reclaimed lands across R-10 as alienable or disposable hence open to disposition or concession, to wit: (1) MO 415 issued by President Aquino, of which Sec. 4 states that [t]he land covered by the Smokey Mountain Dumpsite is hereby conveyed to the National Housing Authority as well as the area to be reclaimed across R-10. The directive to transfer the lands once reclaimed to the NHA implicitly carries with it the declaration that said lands are alienable and disposable. Otherwise, the NHA cannot effectively use them in its housing and resettlement project. (2) Proclamation No. 39 issued by then President Ramos by which the reclaimed lands were conveyed to NHA for subdivision and disposition to qualified beneficiaries and for development into a mixed land use (commercial/industrial) to provide employment opportunities to on-site families and additional areas for port-related activities. Said directive carries with it the pronouncement that said lands have been transformed to alienable and disposable lands. Otherwise, there is no legal way to convey it to the beneficiaries. (3) Proclamation No. 465 likewise issued by President Ramos enlarged the reclaimed area to 79 hectares to be developed and disposed of in the implementation of the SMDRP. The authority put into the hands of the NHA to dispose of the reclaimed lands tacitly sustains the conversion to alienable and disposable lands. Secondly, Special Patents Nos. 3591, 3592, and 3598 issued by the DENR anchored on Proclamations Nos. 39 and 465 issued by President Ramos, without doubt, classified the reclaimed areas as alienable and disposable. Admittedly, it cannot be said that MO 415, Proclamations Nos. 39 and 465 are explicit declarations that the lands to be reclaimed are classified as alienable and disposable. We find however that such conclusion is derived and implicit from the authority given to the NHA to transfer the reclaimed lands to qualified beneficiaries. The query is, when did the declaration take effect? It did so only after the special patents covering the reclaimed areas were issued. It is only on such date that the reclaimed lands became alienable and disposable lands of the public domain. This is in line with the ruling in PEA where said issue was clarified and stressed:

PD No. 1085, coupled with President Aquinos actual issuance of a special patent covering the Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and President Aquinos issuance of a land patent also constitute a declaration that the Freedom Islands are no longer needed for public service . The Freedom Islands are thus alienable or disposable lands of the public domain, open to disposition or concession to qualified parties. (Emphasis supplied.)

Thus, MO 415 and Proclamations Nos. 39 and 465 cumulatively and jointly taken together with Special Patent Nos. 3591, 3592, and 3598 more than satisfy the requirement in PEA that [t]here must be a law or presidential proclamation officially classifying these reclaimed lands as alienable or disposable and open to disposition or concession (emphasis supplied). Apropos the requisite law categorizing reclaimed land as alienable or disposable, we find that RA 6957 as amended by RA 7718 provides ample authority for the classification of reclaimed land in the SMDRP for the repayment scheme of the BOT project as alienable and disposable lands of public domain. Sec. 6 of RA 6957 as amended by RA 7718 provides: For the financing, construction, operation and maintenance of any infrastructure projects undertaken through the build-operate-and transfer arrangement or any of its variations pursuant to the provisions of this Act, the project proponent x x x may likewise be repaid in the form of a share in the revenue of the project or other non-monetary payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed land , subject to the constitutional requirements with respect to the ownership of the land. (Emphasis supplied.)

While RA 6957 as modified by RA 7718 does not expressly declare that the reclaimed lands that shall serve as payment to the project proponent have become alienable and disposable lands and opened for disposition; nonetheless, this conclusion is necessarily implied, for how else can the land be used as the enabling component for the Project if such classification is not deemed made? It may be argued that the grant of authority to sell public lands, pursuant to PEA, does not convert alienable lands of public domain into private or patrimonial lands. We ruled in PEA that alienable lands of public domain must be transferred to qualified private parties, or to government entities not tasked to dispose of public lands, before these lands can become private or patrimonial lands (emphasis supplied). To lands reclaimed by PEA or through a contract with a private person or entity, such reclaimed lands still remain alienable lands of public domain which can be transferred only to Filipino citizens but not to a private corporation. This is because PEA under PD 1084 and EO 525 is tasked to hold and dispose of alienable lands of public domain and it is only when it is transferred to Filipino citizens that it becomes patrimonial property. On the other hand, the NHA is a government agency not tasked to dispose of public lands under its charterThe Revised Administrative Code of 1987. The NHA is an end-user agency authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents are transferred to the NHA by the Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. The reason is obvious: if the reclaimed land is not converted to patrimonial land once transferred to NHA, then it would be useless to transfer it to the NHA since it cannot legally transfer or alienate lands of public domain. More importantly, it cannot attain its avowed purposes and goals since it can only transfer patrimonial lands to

qualified beneficiaries and prospective buyers to raise funds for the SMDRP. From the foregoing considerations, we find that the 79-hectare reclaimed land has been declared alienable and disposable land of the public domain; and in the hands of NHA, it has been reclassified as patrimonial property. Petitioner, however, contends that the reclaimed lands were inexistent prior to the three (3) Presidential Acts (MO 415 and Proclamations Nos. 39 and 465) and hence, the declaration that such areas are alienable and disposable land of the public domain, citing PEA, has no legal basis. Petitioners contention is not well-taken. Petitioners sole reliance on Proclamations Nos. 39 and 465 without taking into consideration the special patents issued by the DENR demonstrates the inherent weakness of his proposition. As was ruled in PEA cited by petitioner himself, PD No. 1085, coupled with President Aquinos actual issuance of a special patent covering the Freedom Islands is equivalent to an official proclamation classifying the Freedom islands as alienable or disposable lands of public domain. In a similar vein, the combined and collective effect of Proclamations Nos. 39 and 465 with Special Patents Nos. 3592 and 3598 is tantamount to and can be considered to be an official declaration that the reclaimed lots are alienable or disposable lands of the public domain. The reclaimed lands covered by Special Patents Nos. 3591, 3592, and 3598, which evidence transfer of ownership of reclaimed lands to the NHA, are official acts of the DENR Secretary in the exercise of his power of supervision and control over alienable and disposable public lands and his exclusive jurisdiction over the management and disposition of all lands of public domain under the Revised Administrative Code of 1987. Special Patent No. 3592 speaks of the transfer of Lots 1 and 2, and RI003901-000012-D with an area of 401,485 square meters based on the survey and technical description approved by the Bureau of Lands. Lastly, Special Patent No. 3598 was issued in favor of the NHA transferring to said agency a tract of land described in Plan RL-00-000013 with an area of 390,000 square meters based on the survey and technical descriptions approved by the Bureau of Lands. The conduct of the survey, the preparation of the survey plan, the computation of the technical description, and the processing and preparation of the special patent are matters within the technical area of expertise of administrative agencies like the DENR and the Land Management Bureau and are generally accorded not only respect but at times even finality. Preparation of special patents calls for technical examination and a specialized review of calculations and specific details which the courts are ill-equipped to undertake; hence, the latter defer to the administrative agency which is trained and knowledgeable on such matters.

with said special law. The lands become alienable and disposable lands of public domain upon issuance of the special patents and become patrimonial properties of the Government from the time the titles are issued to the NHA. As early as 1999, this Court in Baguio v. Republic laid down the jurisprudence that: It is true that, once a patent is registered and the corresponding certificate of title is issued, the land covered by them ceases to be part of the public domain and becomes private property, and the Torrens Title issued pursuant to the patent becomes indefeasible upon the expiration of one year from the date of issuance of such patent. The doctrine was reiterated in Republic v. Heirs of Felipe Alijaga, Sr., Heirs of Carlos Alcaraz v. Republic , and the more recent case of Doris Chiongbian-Oliva v. Republic of the Philippines. Thus, the 79-hectare reclaimed land became patrimonial property after the issuance of certificates of titles to the NHA based on Special Patents Nos. 3592 and 3598. One last point. The ruling in PEA cannot even be applied retroactively to the lots covered by Special Patents Nos. 3592 (40 hectare reclaimed land) and 3598 (39-hectare reclaimed land). The reclamation of the land under SMDRP was completed in August 1996 while the PEA decision was rendered on July 9, 2002. In the meantime, subdivided lots forming parts of the reclaimed land were already sold to private corporations for value and separate titles issued to the buyers. The Project was terminated through a Memorandum of Agreement signed on August 27, 2003. The PEA decision became final through the November 11, 2003 Resolution. It is a settled precept that decisions of the Supreme Court can only be applied prospectively as they may prejudice vested rights if applied retroactively. In Benzonan v. Court of Appeals, the Court trenchantly elucidated the prospective application of its decisions based on considerations of equity and fair play, thus: At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code judicial decisions applying or interpreting the laws of the Constitution shall form a part of the legal system of the Philippines. But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that laws shall have no retroactive effect unless the contrary is provided. This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional. The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] x x x when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.

Subsequently, the special patents in the name of the NHA were submitted to the Register of Deeds of the City of Manila for registration, and corresponding certificates of titles over the reclaimed lots were issued based on said special patents. The issuance of certificates of titles in NHAs name automatically converts the reclaimed lands to patrimonial properties of the NHA. Otherwise, the lots would not be of use to the NHAs housing projects or as payment to the BOT contractor as the enabling component of the BOT contract. The laws of the land have to be applied and interpreted depending on the changing conditions and times. Tempora mutantur et legis mutantur in illis (time changes and laws change with it). One such law that should be treated differently is the BOT Law (RA 6957) which brought about a novel way of implementing government contracts by allowing reclaimed land as part or full payment to the contractor of a government project to satisfy the huge financial requirements of the undertaking. The NHA holds the lands covered by Special Patents Nos. 3592 and 3598 solely for the purpose of the SMDRP undertaken by authority of the BOT Law and for disposition in accordance

Fourth Issue: Whether respondent RBI can acquire reclaimed lands when there was no declaration that said lands are no longer needed for public use Petitioner Chavez avers that despite the declaration that the reclaimed areas are alienable lands of the public domain, still, the reclamation is flawed for there was never any declaration that said lands are no longer needed for public use. We are not moved by petitioners submission. Even if it is conceded that there was no explicit declaration that the lands are no longer needed for public use or public service, there was however an implicit executive declaration that the reclaimed areas R-10 are not necessary anymore for public use or public service when President Aquino through MO 415 conveyed the same to the NHA partly for housing project and related commercial/industrial development intended for disposition to and enjoyment of certain beneficiaries and not the public in general and partly as enabling component to finance the project. President Ramos, in issuing Proclamation No. 39, declared, though indirectly, that the reclaimed lands of the Smokey Mountain project are no longer required for public use or service, thus: These parcels of land of public domain are hereby placed under the administration and disposition of the National Housing Authority to develop, subdivide and dispose to qualified beneficiaries, as well as its development for mix land use (commercial/industrial) to provide employment opportunities to on-site families and additional areas for port related activities. (Emphasis supplied.)

the reclaimed lands are open to disposition or concession to qualified parties. In a similar vein, presidential Proclamations Nos. 39 and 465 jointly with the special patents have classified the reclaimed lands as alienable and disposable and open to disposition or concession as they would be devoted to units for Smokey Mountain beneficiaries. Hence, said lands are no longer intended for public use or service and shall form part of the patrimonial properties of the State under Art. 422 of the Civil Code. As discussed a priori, the lands were classified as patrimonial properties of the NHA ready for disposition when the titles were registered in its name by the Register of Deeds. Moreover, reclaimed lands that are made the enabling components of a BOT infrastructure project are necessarily reclassified as alienable and disposable lands under the BOT Law; otherwise, absurd and illogical consequences would naturally result. Undoubtedly, the BOT contract will not be accepted by the BOT contractor since there will be no consideration for its contractual obligations. Since reclaimed land will be conveyed to the contractor pursuant to the BOT Law, then there is an implied declaration that such land is no longer intended for public use or public service and, hence, considered patrimonial property of the State. Fifth Issue: Whether there is a law authorizing sale of reclaimed lands Petitioner next claims that RBI cannot acquire the reclaimed lands because there was no law authorizing their sale. He argues that unlike PEA, no legislative authority was granted to the NHA to sell reclaimed land. This position is misplaced. Petitioner relies on Sec. 60 of Commonwealth Act (CA) 141 to support his view that the NHA is not empowered by any law to sell reclaimed land, thus: Section 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to any person, corporation or association authorized to purchase or lease public lands for agricultural purposes. The area of the land so leased or sold shall be such as shall, in the judgment of the Secretary of Agriculture and Natural Resources, be reasonably necessary for the purposes for which such sale or lease if requested and shall in no case exceed one hundred and forty-four hectares: Provided, however, That this limitation shall not apply to grants, donations, transfers, made to a province, municipality or branch or subdivision of the Government for the purposes deemed by said entities conducive to the public interest; but the land so granted donated or transferred to a province, municipality, or branch or subdivision of the Government shall not be alienated, encumbered, or otherwise disposed of in a manner affecting its title, except when authorized by Congress; Provided, further, That any person, corporation, association or partnership disqualified from purchasing public land for agricultural purposes under the provisions of this Act, may lease land included under this title suitable for industrial or residential purposes, but the lease granted shall only be valid while such land is used for the purposes referred to. (Emphasis supplied.) Reliance on said provision is incorrect as the same applies only to a province, municipality or branch or subdivision of the Government. The NHA is not a government unit but a government corporation performing governmental and proprietary functions.

While numerical count of the persons to be benefited is not the determinant whether the property is to be devoted to public use, the declaration in Proclamation No. 39 undeniably identifies only particular individuals as beneficiaries to whom the reclaimed lands can be sold, namelythe Smokey Mountain dwellers. The rest of the Filipinos are not qualified; hence, said lands are no longer essential for the use of the public in general. In addition, President Ramos issued on August 31, 1994 Proclamation No. 465 increasing the area to be reclaimed from forty (40) hectares to seventy-nine (79) hectares, elucidating that said lands are undoubtedly set aside for the beneficiaries of SMDRP and not the public declaring the power of NHA to dispose of land to be reclaimed, thus: The authority to administer, develop, or dispose lands identified and reserved by this Proclamation and Proclamation No. 39 (s.1992), in accordance with the SMDRP, as enhance, is vested with the NHA , subject to the provisions of existing laws. (Emphasis supplied.) MO 415 and Proclamations Nos. 39 and 465 are declarations that proclaimed the non-use of the reclaimed areas for public use or service as the Project cannot be successfully implemented without the withdrawal of said lands from public use or service. Certainly, the devotion of the reclaimed land to public use or service conflicts with the intended use of the Smokey Mountain areas for housing and employment of the Smokey Mountain scavengers and for financing the Project because the latter cannot be accomplished without abandoning the public use of the subject land. Without doubt, the presidential proclamations on SMDRP together with the issuance of the special patents had effectively removed the reclaimed lands from public use. More decisive and not in so many words is the ruling in PEA which we earlier cited, that PD No. 1085 and President Aquinos issuance of a land patent also constitute a declaration that the Freedom Islands are no longer needed for public service. Consequently, we ruled in that case that

In addition, PD 757 is clear that the NHA is empowered by law to transfer properties acquired by it under the law to other parties, thus: Section 6. Powers and functions of the Authority. The Authority shall have the following powers and functions to be exercised by the Boards in accordance with the established national human settlements plan prepared by the Human Settlements Commission: xxxx (k) Enter into contracts whenever necessary under such terms and conditions as it may deem proper and reasonable; (l) Acquire property rights and interests, and encumber or otherwise dispose the same as it may deem appropriate (Emphasis supplied.)

There is no doubt that respondent NHA conducted a public bidding of the right to become its joint venture partner in the Smokey Mountain Project. Notices or Invitations to Bid were published in the national dailies on January 23 and 26, 1992 and February 1, 14, 16, and 23, 1992. The bidding proper was done by the Bids and Awards Committee (BAC) on May 18, 1992. On August 31, 1992, the Inter-Agency Techcom made up of the NHA, PEA, DPWH, PPA, DBP, and DENR opened the bids and evaluated them, resulting in the award of the contract to respondent RBI on October 7, 1992. On March 19, 1993, respondents NHA and RBI signed the JVA. On February 23, 1994, said JVA was amended and restated into the ARJVA. On August 11, 1994, the ARJVA was again amended. On September 7, 1994, the OP approved the ARJVA and the amendments to the ARJVA. From these factual settings, it cannot be gainsaid that there was full compliance with the laws and regulations governing public biddings involving a right, concession, or property of the government. Petitioner concedes that he does not question the public bidding on the right to be a joint venture partner of the NHA, but the absence of bidding in the sale of alienable and disposable lands of public domain pursuant to CA 141 as amended. Petitioners theory is incorrect. Secs. 63 and 67 of CA 141, as amended, are in point as they refer to government sale by the Director of Lands of alienable and disposable lands of public domain. This is not present in the case at bar. The lands reclaimed by and conveyed to the NHA are no longer lands of public domain. These lands became proprietary lands or patrimonial properties of the State upon transfer of the titles over the reclaimed lands to the NHA and hence outside the ambit of CA 141. The NHA can therefore legally transfer patrimonial land to RBI or to any other interested qualified buyer without any bidding conducted by the Director of Lands because the NHA, unlike PEA, is a government agency not tasked to sell lands of public domain. Hence, it can only hold patrimonial lands and can dispose of such lands by sale without need of public bidding. Petitioner likewise relies on Sec. 79 of PD 1445 which requires public bidding when government property has become unserviceable for any cause or is no longer needed. It appears from the Handbook on Property and Supply Management System, Chapter 6, that reclaimed lands which have become patrimonial properties of the State, whose titles are conveyed to government agencies like the NHA, which it will use for its projects or programs, are not within the ambit of Sec. 79. We quote the determining factors in the Disposal of Unserviceable Property, thus: Determining Factors Unserviceable Property in the Disposal of

Letter (l) is emphatic that the NHA can acquire property rights and interests and encumber or otherwise dispose of them as it may deem appropriate. The transfer of the reclaimed lands by the National Government to the NHA for housing, commercial, and industrial purposes transformed them into patrimonial lands which are of course owned by the State in its private or proprietary capacity. Perforce, the NHA can sell the reclaimed lands to any Filipino citizen or qualified corporation. Sixth Issue: Whether the transfer of reclaimed lands to RBI was done by public bidding Petitioner also contends that there was no public bidding but an awarding of ownership of said reclaimed lands to RBI. Public bidding, he says, is required under Secs. 63 and 67 of CA 141 which read: Section 63. Whenever it is decided that lands covered by this chapter are not needed for public purposes, the Director of Lands shall ask the Secretary of Agriculture and Commerce for authority to dispose of the same. Upon receipt of such authority, the Director of Lands shall give notice by public advertisement in the same manner as in the case of leases or sales of agricultural public land, that the Government will lease or sell, as the case may be, the lots or blocks specified in the advertisement, for the purpose stated in the notice and subject to the conditions specified in this chapter. xxxx Section 67. The lease or sale shall be made through oral bidding; and adjudication shall be made to the highest bidder. However, where an applicant has made improvements on the land by virtue of a permit issued to him by competent authority, the sale or lease shall be made by sealed bidding as prescribed in section twenty-six of this Act, the provisions of which shall be applied whenever applicable. If all or part of the lots remain unleased or unsold, the Director of Lands shall from time to time announce in the Official Gazette or in any other newspapers of general circulation, the lease of sale of those lots, if necessary. He finds that the NHA and RBI violated Secs. 63 and 67 of CA 141, as the reclaimed lands were conveyed to RBI by negotiated contract and not by public bidding as required by law. This stand is devoid of merit.

Property, which can no longer be repaired or reconditioned; Property whose maintenance costs of repair more than outweigh the benefits and services that will be derived from its continued use; Property that has become obsolete or outmoded because of changes in technology; Serviceable property that has been rendered unnecessary due to change in the agencys function or mandate; Unused supplies, materials and spare parts that were procured in excess of requirements; and Unused supplies and materials that [have] become dangerous to use because of long storage or use of which is determined to be hazardous.

Reclaimed lands cannot be considered unserviceable properties. The reclaimed lands in question are very much needed by the NHA for the Smokey Mountain Project because without it, then the projects will not be successfully implemented. Since the reclaimed lands are not unserviceable properties and are very much needed by NHA, then Sec. 79 of PD 1445 does not apply. More importantly, Sec. 79 of PD 1445 cannot be applied to patrimonial properties like reclaimed lands transferred to a government agency like the NHA which has entered into a BOT contract with a private firm. The reason is obvious. If the patrimonial property will be subject to public bidding as the only way of disposing of said property, then Sec. 6 of RA 6957 on the repayment scheme is almost impossible or extremely difficult to implement considering the uncertainty of a winning bid during public auction. Moreover, the repayment scheme of a BOT contract may be in the form of non-monetary payment like the grant of a portion or percentage of reclaimed land. Even if the BOT partner participates in the public bidding, there is no assurance that he will win the bid and therefore the payment in kind as agreed to by the parties cannot be performed or the winning bid prize might be below the estimated valuation of the land. The only way to harmonize Sec. 79 of PD 1445 with Sec. 6 of RA 6957 is to consider Sec. 79 of PD 1445 as inapplicable to BOT contracts involving patrimonial lands. The law does not intend anything impossible ( lex non intendit aliquid impossibile). Seventh Issue: Whether RBI, being a private corporation, is barred by the Constitution to acquire lands of public domain Petitioner maintains that RBI, being a private corporation, is expressly prohibited by the 1987 Constitution from acquiring lands of public domain. Petitioners proposition has no legal mooring for the following reasons: 1. RA 6957 as amended by RA 7718 explicitly states that a contractor can be paid a portion as percentage of the reclaimed land subject to the constitutional requirement that only Filipino citizens or corporations with at least 60% Filipino equity can acquire the same. It cannot be denied that RBI is a private corporation, where Filipino citizens own at least 60% of the stocks. Thus, the transfer to RBI is valid and constitutional. 2. When Proclamations Nos. 39 and 465 were issued, inalienable lands covered by said proclamations were converted to alienable and disposable lands of public domain. When the titles to the reclaimed lands were transferred to the NHA, said alienable and disposable lands of public domain were automatically classified as lands of the private domain or patrimonial properties of the State because the NHA is an agency NOT tasked to dispose of alienable or disposable lands of public domain. The only way it can transfer the reclaimed land in conjunction with its projects and to attain its goals is when it is automatically converted to patrimonial properties of the State. Being patrimonial or private properties of the State, then it has the power to sell the same to any qualified personunder the Constitution, Filipino citizens as private corporations, 60% of which is owned by Filipino citizens like RBI. 3. The NHA is an end-user entity such that when alienable lands of public domain are transferred to said agency, they are automatically classified as patrimonial properties. The NHA is similarly situated as BCDA which was granted the authority to dispose of patrimonial lands of the government under RA 7227. The nature of the property holdings conveyed to BCDA is elucidated and stressed in the May 6, 2003 Resolution in Chavez v. PEA, thus: BCDA is an entirely different government entity. BCDA is authorized by law to sell specific government lands that have long been declared

by presidential proclamations as military reservations for use by the different services of the armed forces under the Department of National Defense. BCDAs mandate is specific and limited in area, while PEAs mandate is general and national. BCDA holds government lands that have been granted to end-user government entitiesthe military services of the armed forces. In contrast, under Executive Order No. 525, PEA holds the reclaimed public lands, not as an end-user entity, but as the government agency primarily responsible for integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government. x x x Well-settled is the doctrine that public land granted to an end-user government agency for a specific public use may subsequently be withdrawn by Congress from public use and declared patrimonial property to be sold to private parties. R.A. No. 7227 creating the BCDA is a law that declares specific military reservations no longer needed for defense or military purposes and reclassifies such lands as patrimonial property for sale to private parties. Government owned lands, as long as they are patrimonial property, can be sold to private parties, whether Filipino citizens or qualified private corporations. Thus, the so-called Friar Lands acquired by the government under Act No. 1120 are patrimonial property which even private corporations can acquire by purchase. Likewise, reclaimed alienable lands of the public domain if sold or transferred to a public or municipal corporation for a monetary consideration become patrimonial property in the hands of the public or municipal corporation. Once converted to patrimonial property, the land may be sold by the public or municipal corporation to private parties, whether Filipino citizens or qualified private corporations. (Emphasis supplied.)

The foregoing Resolution makes it clear that the SMDRP was a program adopted by the Government under Republic Act No. 6957 (An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector, and For Other Purposes), as amended by RA 7718, which is a special law similar to RA 7227. Moreover, since the implementation was assigned to the NHA, an end-user agency under PD 757 and RA 7279, the reclaimed lands registered under the NHA are automatically classified as patrimonial lands ready for disposition to qualified beneficiaries. The foregoing reasons likewise apply to the contention of petitioner that HCPTI, being a private corporation, is disqualified from being a transferee of public land. What was transferred to HCPTI is a 10-hectare lot which is already classified as patrimonial property in the hands of the NHA. HCPTI, being a qualified corporation under the 1987 Constitution, the transfer of the subject lot to it is valid and constitutional. Eighth Issue: Whether respondents can be compelled to disclose all information related to the SMDRP Petitioner asserts his right to information on all documents such as contracts, reports, memoranda, and the like relative to SMDRP. Petitioner asserts that matters relative to the SMDRP have not been disclosed to the public like the current stage of the Project, the present financial capacity of RBI, the complete list of investors in the asset pool,

the exact amount of investments in the asset pool and other similar important information regarding the Project. He prays that respondents be compelled to disclose all information regarding the SMDRP and furnish him with originals or at least certified true copies of all relevant documents relating to the said project including, but not limited to, the original JVA, ARJVA, AARJVA, and the Asset Pool Agreement. This relief must be granted. The right of the Filipino people to information on matters of public concern is enshrined in the 1987 Constitution, thus: ARTICLE II xxxx SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. ARTICLE III SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy.

Sec. 28, Art. II compels the State and its agencies to fully disclose all of its transactions involving public interest. Thus, the government agencies, without need of demand from anyone, must bring into public view all the steps and negotiations leading to the consummation of the transaction and the contents of the perfected contract. Such information must pertain to definite propositions of the government, meaning official recommendations or final positions reached on the different matters subject of negotiation. The government agency, however, need not disclose intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the exploratory stage. The limitation also covers privileged communication like information on military and diplomatic secrets; information affecting national security; information on investigations of crimes by law enforcement agencies before the prosecution of the accused; information on foreign relations, intelligence, and other classified information. It is unfortunate, however, that after almost twenty (20) years from birth of the 1987 Constitution, there is still no enabling law that provides the mechanics for the compulsory duty of government agencies to disclose information on government transactions. Hopefully, the desired enabling law will finally see the light of day if and when Congress decides to approve the proposed Freedom of Access to Information Act. In the meantime, it would suffice that government agencies post on their bulletin boards the documents incorporating the information on the steps and negotiations that produced the agreements and the agreements themselves, and if finances permit, to upload said information on their respective websites for easy access by interested parties. Without any law or regulation governing the right to disclose information, the NHA or any of the respondents cannot be faulted if they were not able to disclose information relative to the SMDRP to the public in general. The other aspect of the peoples right to know apart from the duty to disclose is the duty to allow access to information on matters of public concern under Sec. 7, Art. III of the Constitution. The gateway to information opens to the public the following: (1) official records; (2) documents and papers pertaining to official acts, transactions, or decisions; and (3) government research data used as a basis for policy development. Thus, the duty to disclose information should be differentiated from the duty to permit access to information. There is no need to demand from the government agency disclosure of information as this is mandatory under the Constitution; failing that, legal remedies are available. On the other hand, the interested party must first request or even demand that he be allowed access to documents and papers in the particular agency. A request or demand is required; otherwise, the government office or agency will not know of the desire of the interested party to gain access to such papers and what papers are needed. The duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency. We find that although petitioner did not make any demand on the NHA to allow access to information, we treat the petition as a written request or demand. We order the NHA to allow petitioner access to its official records, documents, and papers relating to official acts, transactions, and decisions that are relevant to the said JVA and subsequent agreements relative to the SMDRP. Ninth Issue: Whether the operative fact doctrine applies to the instant petition

In Valmonte v. Belmonte, Jr., this Court explicated this way: [A]n essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.

In PEA, this Court elucidated the rationale behind the right to information: These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials at all times x x x accountable to the people, for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public

Petitioner postulates that the operative fact doctrine is inapplicable to the present case because it is an equitable doctrine which could not be used to countenance an inequitable result that is contrary to its proper office. On the other hand, the petitioner Solicitor General argues that the existence of the various agreements implementing the SMDRP is an operative fact that can no longer be disturbed or simply ignored, citing Rieta v. People of the Philippines. The argument of the Solicitor General is meritorious. The operative fact doctrine is embodied in De Agbayani v. Court of Appeals, wherein it is stated that a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with, thus: As the new Civil Code puts it: When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication.

This doctrine was reiterated in the more recent case of City of Makati v. Civil Service Commission, wherein we ruled that:

Moreover, we certainly cannot nullify the City Governments order of suspension, as we have no reason to do so, much less retroactively apply such nullification to deprive private respondent of a compelling and valid reason for not filing the leave application. For as we have held, a void act though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application. (Emphasis supplied.)

The principle was further explicated in the case of Rieta v. People of the Philippines, thus: In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. x x x It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to [the determination of its invalidity], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. In the May 6, 2003 Resolution in Chavez v. PEA, we ruled that De Agbayani is not applicable to the case considering that the prevailing law did not authorize private corporations from owning land. The prevailing law at the time was the 1935 Constitution as no statute dealt with the same issue.

In the language of an American Supreme Court decision: The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. This language has been quoted with approval in a resolution in Araneta v. Hill and the decision in Manila Motor Co., Inc. v. Flores. An even more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. (Emphasis supplied.)

In the instant case, RA 6957 was the prevailing law at the time that the joint venture agreement was signed. RA 6957, entitled An Act Authorizing The Financing, Construction, Operation And Maintenance Of Infrastructure Projects By The Private Sector And For Other Purposes, which was passed by Congress on July 24, 1989, allows repayment to the private contractor of reclaimed lands. Such law was relied upon by respondents, along with the above-mentioned executive issuances in pushing through with the Project. The existence of such law and issuances is an operative fact to which legal consequences have attached. This Court is constrained to give legal effect to the acts done in consonance with such executive and legislative acts; to do otherwise would work patent injustice on respondents. Further, in the May 6, 2003 Resolution in Chavez v. PEA, we ruled that in certain cases, the transfer of land, although illegal or unconstitutional, will not be invalidated on considerations of equity and social justice. However, in that case, we did not apply the same considering that PEA, respondent in said case, was not entitled to equity principles there being bad faith on its part, thus: There are, moreover, special circumstances that disqualify Amari from invoking equity principles. Amari cannot claim good faith because even before Amari signed the Amended JVA on March 30, 1999, petitioner had already filed the instant case on April 27, 1998 questioning precisely the qualification of Amari to acquire the Freedom Islands. Even before the filing of this petition, two Senate Committees had already approved on September 16, 1997 Senate Committee Report No. 560. This Report concluded, after a well-publicized investigation into PEAs sale of the Freedom Islands to Amari, that the Freedom Islands are inalienable lands of the public domain. Thus, Amari signed the Amended JVA knowing and assuming all the attendant risks, including the annulment of the Amended JVA.

Sec. 2 of Rule 65 of the 1997 Rules of Civil Procedure provides: Sec. 2. Petition for prohibition.When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasijudicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

It has not been shown that the NHA exercised judicial or quasijudicial functions in relation to the SMDRP and the agreements relative to it. Likewise, it has not been shown what ministerial functions the NHA has with regard to the SMDRP. A ministerial duty is one which is so clear and specific as to leave no room for the exercise of discretion in its performance. It is a duty which an officer performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of his/her own judgment upon the propriety of the act done. Whatever is left to be done in relation to the August 27, 2003 MOA, terminating the JVA and other related agreements, certainly does not involve ministerial functions of the NHA but instead requires exercise of judgment. In fact, Item No. 4 of the MOA terminating the JVAs provides for validation of the developers (RBIs) claims arising from the termination of the SMDRP through the various government agencies. Such validation requires the exercise of discretion. In addition, prohibition does not lie against the NHA in view of petitioners failure to avail and exhaust all administrative remedies. Clear is the rule that prohibition is only available when there is no adequate remedy in the ordinary course of law. More importantly, prohibition does not lie to restrain an act which is already a fait accompli. The operative fact doctrine protecting vested rights bars the grant of the writ of prohibition to the case at bar. It should be remembered that petitioner was the Solicitor General at the time SMDRP was formulated and implemented. He had the opportunity to question the SMDRP and the agreements on it, but he did not. The moment to challenge the Project had passed. On the prayer for a writ of mandamus, petitioner asks the Court to compel respondents to disclose all documents and information relating to the project, including, but not limited to, any subsequent agreements with respect to the different phases of the Project, the revisions of the original plan, the additional works incurred on the Project, the current financial condition of respondent RBI, and the transactions made with respect to the project. We earlier ruled that petitioner will be allowed access to official records relative to the SMDRP. That would be adequate relief to satisfy petitioners right to the information gateway. WHEREFORE, the petition is PARTIALLY GRANTED. The prayer for a writ of prohibition is DENIED for lack of

Such indicia of bad faith are not present in the instant case. When the ruling in PEA was rendered by this Court on July 9, 2002, the JVAs were all executed. Furthermore, when petitioner filed the instant case against respondents on August 5, 2004, the JVAs were already terminated by virtue of the MOA between the NHA and RBI. The respondents had no reason to think that their agreements were unconstitutional or even questionable, as in fact, the concurrent acts of the executive department lent validity to the implementation of the Project. The SMDRP agreements have produced vested rights in favor of the slum dwellers, the buyers of reclaimed land who were issued titles over said land, and the agencies and investors who made investments in the project or who bought SMPPCs. These properties and rights cannot be disturbed or questioned after the passage of around ten (10) years from the start of the SMDRP implementation. Evidently, the operative fact principle has set in. The titles to the lands in the hands of the buyers can no longer be invalidated. The Courts Dispositions Based on the issues raised in this petition, we find that the March 19, 1993 JVA between NHA and RBI and the SMDRP embodied in the JVA, the subsequent amendments to the JVA and all other agreements signed and executed in relation to it, including, but not limited to, the September 26, 1994 Smokey Mountain Asset Pool Agreement and the agreement on Phase I of the Project as well as all other transactions which emanated from the Project, have been shown to be valid, legal, and constitutional. Phase II has been struck down by the Clean Air Act. With regard to the prayer for prohibition, enjoining respondents particularly respondent NHA from further implementing and/or enforcing the said Project and other agreements related to it, and from further deriving and/or enjoying any rights, privileges and interest from the Project, we find the same prayer meritless.

merit. The prayer for a writ of mandamus is GRANTED. Respondent NHA is ordered to allow access to petitioner to all public documents and official records relative to the SMDRPincluding, but not limited to, the March 19, 1993 JVA between the NHA and RBI and subsequent agreements

related to the JVA, the revisions over the original plan, and the additional works incurred on and the transactions made with respect to the Project. No costs. SO ORDERED.

Petitioners claim that respondent Ong is a Chinese citizen, that this fact is plain and incontestable, and that his own birth certificate indicates his Chinese citizenship. Petitioners attached a copy of said birth certificate as Annex "H" to the petition. The birth certificate, petitioners add, reveals that at the time of respondent Ongs birth on May 25, 1953, his father was Chinese and his mother was also Chinese. Petitioners invoke the Constitution:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 177721 July 3, 2007

Section 7 (1) of Article VIII of the 1987 Constitution provides that "No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines." Sec. 2 of Art. IV defines "naturalborn citizens as those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine Citizenship."1 Petitioners maintain that even if it were granted that eleven years after respondent Ongs birth his father was finally granted Filipino citizenship by naturalization, that, by itself, would not make respondent Ong a naturalborn Filipino citizen. Petitioners further argue that respondent Ongs birth certificate speaks for itself and it states his nationality as "Chinese" at birth. They invoke the Civil Code: Article 410 of the Civil Code provides that "[t]he books making up the civil register and all documents relating thereto x x x shall be prima facie evidence of the facts therein contained." Therefore, the entry in Ongs birth certificate indicating his nationality as Chinese is prima facie evidence of the fact that Ongs citizenship at birth is Chinese. Article 412 of the Civil Code also provides that "[N]o entry in a civil register shall be changed or corrected without a judicial order." Thus, as long as Ongs birth certificate is not changed by a judicial order, the Judicial & Bar Council, as well as the whole world, is bound by what is stated in his birth certificate.2 This birth certificate, petitioners assert, prevails over respondent Ongs new Identification Certificate issued by the Bureau of Immigration dated October 16, 1996, stating that he is a naturalborn Filipino and over the opinion of then Secretary of Justice Teofisto Guingona that he is a natural-born Filipino. They maintain that the Department of Justice (DOJ) does not have the power or authority to alter entries in a birth certificate; that respondent Ongs old Identification Certificate did not declare that he is a natural-born Filipino; and that respondent Ongs remedy is an action to correct his citizenship as it appears in his birth certificate. Petitioners thereupon pray that a writ of certiorari be issued annulling the appointment issued to respondent Ong as Associate Justice of this Court. Subsequently, on May 24, 2007, petitioners filed an Urgent Motion for the Issuance of a Temporary Restraining Order (TRO), praying that a TRO be issued, in accordance with the Rules of Court, to prevent and restrain respondent Executive Secretary from releasing the appointment of respondent Ong, and to prevent and restrain respondent Ong from assuming the office and discharging the functions of Associate Justice of this Court. The Court required respondents to Comment on the petition. Respondent Executive Secretary accordingly filed his Comment, essentially stating that the appointment of respondent Ong as Associate Justice of this Court on May 16, 2007 was made by the President pursuant to the powers vested in her by Article VIII, Section 9 of the Constitution, thus:

KILOSBAYAN FOUNDATION AND BANTAY KATARUNGAN FOUNDATION, petitioners, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA; SANDIGANBAYAN JUSTICE GREGORY S. ONG, respondents. DECISION AZCUNA, J.: Filed on May 23, 2007 was this petition for certiorari under Rule 65 of the Rules of Court. Petitioners are peoples and/or non-governmental organizations engaged in public and civic causes aimed at protecting the peoples rights to selfgovernance and justice. Respondent Executive Secretary is the head of the Office of the President and is in charge of releasing presidential appointments including those of Supreme Court Justices. Respondent Gregory S. Ong is allegedly the party whose appointment would fill up the vacancy in this Court. Petitioners allege that: On May 16, 2007, respondent Executive Secretary, in representation of the Office of the President, announced an appointment in favor of respondent Gregory S. Ong as Associate Justice of the Supreme Court to fill up the vacancy created by the retirement on April 28, 2007 of Associate Justice Romeo J. Callejo, Sr. The appointment was reported the following day, May 17, 2007, by the major daily publications. On May 18, 2007, the major daily publications reported that the appointment was "recalled" or "held in abeyance" by Malacaang in view of the question relating to the citizenship of respondent Gregory S. Ong. There is no indication whatever that the appointment has been cancelled by the Office of the President. On May 19, 2007, the major daily publications reported that respondent Executive Secretary stated that the appointment is "still there except that the validation of the issue is being done by the Judicial and Bar Council (JBC)." Petitioners contend that the appointment extended to respondent Ong through respondent Executive Secretary is patently unconstitutional, arbitrary, whimsical and issued with grave abuse of discretion amounting to lack of jurisdiction.

SEC. 9. The Members of the Supreme Court and Judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. Respondent Executive Secretary added that the President appointed respondent Ong from among the list of nominees who were duly screened by and bore the imprimatur of the JBC created under Article VIII, Section 8 of the Constitution. Said respondent further stated: "The appointment, however, was not released, but instead, referred to the JBC for validation of respondent Ongs citizenship."3 To date, however, the JBC has not received the referral. Supporting the Presidents action and respondent Ongs qualifications, respondent Executive Secretary submits that: 1. The President did not gravely abuse her discretion as she appointed a person, duly nominated by the JBC, which passed upon the appointees qualifications. 2. Justice Gregory S. Ong is a natural-born citizen as determined by the Bureau of Immigration and affirmed by the Department of Justice, which have the authority and jurisdiction to make determination on matters of citizenship. 3. Undisputed evidence disclosed that respondent Ong is a natural-born citizen. 4. Petitioners are not entitled to a temporary restraining order.4 Respondent Ong submitted his Comment with Opposition, maintaining that he is a natural-born Filipino citizen; that petitioners have no standing to file the present suit; and that the issue raised ought to be addressed to the JBC as the Constitutional body mandated to review the qualifications of those it recommends to judicial posts. Furthermore, the petitioners in his view failed to include the President who is an indispensable party as the one who extended the appointment. As to his citizenship, respondent Ong traces his ancestral lines to one Maria Santos of Malolos, Bulacan, born on November 25, 1881, who was allegedly a Filipino citizen5 who married Chan Kin, a Chinese citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin died in China, as a result of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a minor; that Juan Santos thereby also became a Filipino citizen;6 that respondent Ongs mother, Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese citizen, who were married in 1927; that, therefore, respondents mother was a Filipino citizen at birth; that Dy Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby becoming a Chinese citizen; that when respondent Ong was eleven years old his father, Eugenio Ong Han Seng, was naturalized, and as a result he, his brothers and sisters, and his mother were included in the naturalization. Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a certification and an identification that he is a natural-born Filipino citizen under Article IV, Sections 1 and 2 of the Constitution, since his mother was a Filipino citizen when he was born. Summarizing, his arguments are as follows: I. PETITIONERS LACK OF STANDING AND INABILITY TO IMPLEAD AN INDISPENSABLE PARTY WHOSE OFFICIAL ACTION IS THE VERY ACT SOUGHT TO BE ANNULLED CONSTITUTE INSUPERABLE LEGAL OBSTACLES TO THE EXERCISE OF JUDICIAL POWER AND SHOULD PREVENT THIS CASE FROM PROCEEDING FURTHER FOR DETERMINATION ON THE MERITS BY THIS HONORABLE COURT.

II. RESPONDENT ONG IS, IN TRUTH AND IN FACT, A NATURAL-BORN CITIZEN OF THE PHILIPPINES, CONSIDERING THAT: A. DY GUIOK SANTOS WAS A FILIPINO CITIZEN AT THE TIME OF HER MARRIAGE TO EUGENIO; and B. HAVING BEEN BORN BEFORE JANUARY 17, 1973 OF A FILIPINO MOTHER AND WHO ELECTED FILIPINO CITIZENSHIP UPON REACHING THE AGE OF MAJORITY, RESPONDENT ONG MEETS THE REQUIREMENTS UNDER ARTICLE IV, SECTIONS 1 AND 2 OF THE 1987 CONSTITUTION. III. THE BIRTH CERTIFICATE OF RESPONDENT ONG AS PRESENTED BY PETITIONERS CAN, IN NO WAY, WITHOUT MORE, ESTABLISH WITH FINALITY THAT HE IS A CHINESE NATIONAL, OR DISPROVE CONCLUSIVELY THAT HE IS, IN FACT, A NATURALBORN FILIPINO, DESCENDED FROM "INDIOS." IV. IT IS NOT NECESSARY FOR RESPONDENT ONG TO RESORT TO JUDICIAL ACTION UNDER RULE 108 OF THE RULES OF COURT FOR HIM TO BE ABLE TO CLAIM AND ENJOY HIS RIGHTFUL STATUS AS A NATURAL-BORN FILIPINO. V. THE BUREAU OF IMMIGRATION HAS PREEMPTIVE LEGAL AUTHORITY OR PRIMARY ADMINISTRATIVE JURIDICTION TO MAKE A DETERMINATION AS REGARDS THE CITIZENSHIP OF RESPONDENT ONG, AND UPON SUBSEQUENT CONFIRMATION BY THE SECRETARY OF JUSTICE AS REQUIRED BY THE RULES, ISSUE A DECLARATION (I.E., IDENTIFICATION CERTIFICATE NO. 113878) RECOGNIZING THAT RESPONDENT ONG IS A NATURAL-BORN FILIPINO, THEREBY RENDERING NONEXISTENT ANY CONTITUTIONAL IMPEDIMENT FOR HIM TO ASSUME THE POSITION OF ASSOCIATE JUSTICE OF THE SUPREME COURT.7 Petitioners, in turn, filed a Consolidated Reply, in which they asserted their standing to file this suit on the strength of previous decisions of this Court, e.g., Kilosbayan, Incorporated v. Guingona8 and Kilosbayan, Incorporated v. Morato,9 on the ground that the case is one of transcendental importance. They claim that the Presidents appointment of respondent Ong as Supreme Court Justice violates the Constitution and is, therefore, attended with grave abuse of discretion amounting to lack or excess of jurisdiction. Finally, they reiterate that respondent Ongs birth certificate, unless corrected by judicial order in non-summary proceedings for the purpose, is binding on all and is prima facie evidence of what it states, namely, that respondent Ong is a Chinese citizen. The alleged naturalization of his father when he was a minor would not make him a natural-born Filipino citizen. The petition has merit. First, as to standing. Petitioners have standing to file the suit simply as peoples organizations and taxpayers since the matter involves an issue of utmost and far-reaching Constitutional importance, namely, the qualification nay, the citizenship of a person to be appointed a member of this Court. Standing has been accorded and recognized in similar instances.10 Second, as to having to implead the President as an alleged necessary party. This is not necessary since the suit impleads the Executive Secretary who is the alter ego of the President and he has in fact spoken for her in his

Comment. Furthermore, the suit does not seek to stop the President from extending the appointment but only the Executive Secretary from releasing it and respondent Ong from accepting the same. Third, as to the proper forum for litigating the issue of respondent Ongs qualification for memberhip of this Court. This case is a matter of primordial importance involving compliance with a Constitutional mandate. As the body tasked with the determination of the merits of conflicting claims under the Constitution, 11 the Court is the proper forum for resolving the issue, even as the JBC has the initial competence to do so. Fourth, as to the principal issue of the case is respondent Ong a naturalborn Filipino citizen? On this point, the Court takes judicial notice of the records of respondent Ongs petition to be admitted to the Philippine bar. In his petition to be admitted to the Philippine bar, docketed as B.E. No. 1398-N filed on September 14, 1979, under O.R. No. 8131205 of that date, respondent Ong alleged that he is qualified to be admitted to the Philippine bar because, among others, he is a Filipino citizen; and that he is a Filipino citizen because his father, Eugenio Ong Han Seng, a Chinese citizen, was naturalized in 1964 when he, respondent Ong, was a minor of eleven years and thus he, too, thereby became a Filipino citizen. As part of his evidence, in support of his petition, be submitted his birth certificate and the naturalization papers of his father. His birth certificate12 states that he was a Chinese citizen at birth and that his mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio Ong Han Seng, was also a Chinese citizen. Specifically, the following appears in the records: PETITION COMES now the undersigned petitioner and to this Honorable Court respectfully states: 1. That he is single/married/widower/widow, Filipino citizen and 26 years of age, having been born on May 25, 1953, at SAN JUAN RIZAL, to spouses Eugenio Ong Han Seng and Dy Guiok Santos who are citizens of the Philippines, as evidenced by the attached copy of his birth certificate marked as Annex A (if born outside of wedlock, state so; or if Filipino citizen other than natural born, state how and when citizenship was acquired and attach the necessary proofs: By Nat. Case #584 of Eugenio Ong Han Seng (Father) See Attached documents Annex B, B-1, B-2, B-3, B-4. xxx VERIFICATION Republic of the Philippines ) City of Manila ) S.S. I, GREGORY SANTOS ONG, after being sworn, depose and state: that I am the petitioner in the foregoing petition; that the same was prepared by me and/or at my instance and that the allegations contained therein are true to my knowledge. (Sgd.) GREGORY SANTOS ONG Affiant

SUBSCRIBED AND SWORN to before me this 28 th day of August, 1979, City of Manila, Philippines, affiant exhibiting his/her Residence Certificate No. A-___________, issued at ________________, on __________________, 19__. Doc. Page Book Series of 1979.13 No. No. No. 98; 10; VIII;

In fact, Emilio R. Rebueno, Deputy Clerk of Court and Bar Confidant, wrote respondent Ong a letter dated October 3, 1979 stating that in connection with his Petition for Admission to the 1979 Bar Examinations, he has to submit: 1) A certified clear copy of his Birth Certificate; and 2) A certification of non-appeal re his citizenship from the Office of the Solicitor General. Respondent Ong complied with these requirements. It was on the basis of these allegations under oath and the submitted evidence of naturalization that this Court allowed respondent Ong to take the oath as a lawyer. It is clear, therefore, that from the records of this Court, respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of his natural-born status by the Bureau of Immigration and the DOJ cannot amend the final decision of the trial court stating that respondent Ong and his mother were naturalized along with his father. Furthermore, as petitioners correctly submit, no substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. In Labayo-Rowe v. Republic,14 this Court held that: Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted.15 Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court.16 The series of events and long string of alleged changes in the nationalities of respondent Ongs ancestors, by various births, marriages and deaths, all entail factual assertions that need to be threshed out in proper judicial proceedings so as to correct the existing records on his birth and citizenship. The chain of evidence would have to show that Dy Guiok Santos, respondent Ongs mother, was a Filipino citizen, contrary to what still appears in the records of this Court. Respondent Ong has the burden of proving in court his alleged ancestral tree as well as his citizenship under the time-line of three Constitutions. 17 Until this is done, respondent Ong cannot accept an appointment to this Court as that would be a violation of the Constitution. For this reason, he can be prevented by injunction from doing so. WHEREFORE, the petition is GRANTED as one of injunction directed against respondent Gregory S. Ong, who is hereby ENJOINED from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of

that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship. This Decision is FINAL and IMMEDIATELY EXECUTORY. No costs. SO ORDERED. THIRD DIVISION [G.R. No. 109645. March 4, 1996] ORTIGAS AND COMPANY LIMITED PARTNERSHIP, petitioner, vs. JUDGE TIRSO VELASCO and DOLORES V. MOLINA, respondents. [G.R. No. 112564. March 4, 1996] DOLORES V. MOLINA, petitioner, vs. HON. PRESIDING JUDGE, RTC, QUEZON CITY, BR. 105, and MANILA BANKING CORPORATION, respondents. RESOLUTION NARVASA, C.J.: Before the Court is the motion of private respondent Manila Banking Corporation (hereafter, simply Manilabank) to cite petitioner Dolores V. Molina in contempt of court because she has allegedly persistently defied the lawful and just orders of the Court x x x betraying a clear and malicious intention x x x to erode the Courts authority and integrity which is detrimental to the administration of justice. Manilabank asserts that the Decision of the Court in these consolidated cases dated July 25, 1994 became final and executory upon issuance of the Resolution dated January 23, 1995, which denied with finality Molinas motion for reconsideration dated August 10, 1994 and two (2) supplements thereto, both dated September 22, 1994. This notwithstanding, Molina filed a Motion for Leave to File the Herein Incorporated Second Motion for Reconsideration and to Allow x x x Dolores V. Molina a Day in Court Relative to Her Petition for Reconstitution, dated February 27, 1995. In another Resolution, dated March 1, 1995, this Court reiterated the denial with finality of Molinas motion and, in addition, ordered that no further pleadings, motions or papers shall be filed x x x except only as regards the issues directly involved in the Motion for Reconsideration (Re: Dismissal of Respondent Judge). And in the Resolution of July 24,1995, the Court, among other things, declared these cases closed and terminated, reiterated its direction that no further pleadings, motions or papers be henceforth filed in these cases except only as regards the issues directly involved in the Motion for Reconsideration (Re: Dismissal of Respondent Judge), x x x and directed entry of judgment and transmittal of the mittimus to the corresponding courts of origin, for appropriate action and disposition. It is Manilabanks submission that Molina defied these Resolutions of the Court and engaged in contumacious conduct by filing the following subsequent motions (in addition to her second motion for reconsideration of February 27, 1995, supra), to wit: a) motion to refer the cases to the Court En Banc dated April 5, 1995 (denied by Resolution of June 19, 1995); b) consolidated motion dated July 25, 1995, for reconsideration of the June 19, 1995 Resolution (denied by Resolution dated August 28, 1995); and

c) motion dated August 21, 1995 for reconsideration of the July 24, 1995 Resolution (Re: increasing fines on counsels and directing entry of judgment) (denied by Resolution dated October 25, 1995). Manilabank asserts that said motions are patently unmeritorious and filed manifestly for delay, the issues therein having been repeatedly raised ad nauseam by Molina and the Court having already weighed and correctly resolved (them) in favor of private respondent. It opines that said issues are barred by the March 1, 1995 Resolution. In her comment/opposition dated October 11, 1995, Molina traversed these allegations of contumacy, arguing that the pleadings are allowed under the Revised Rules of Court, particularly Rules 49 and 52; all her motions are meritorious x x x (since they lay) before the Court new legal issues for determination brought about by the pleadings of the other party; the pleadings were filed before she learned of the entry of judgment sometime in September 1995; and there is no manifest x x x refusal to obey the Courts Resolutions. She maintains that the second motion for reconsideration - filed before the March 1, 1995 Resolution - presented four (4) new issues to the Court, implying that (a) it is not proscribed by the direction against the filing of further pleadings, motions or papers and (b) even if the subsequent motions were mere reiterations of the second motion for reconsideration, they are nonetheless meritorious. She insists that all that her pleadings continuously pray for is x x x to give her a day in court.

Insistent Reiteration of Argument In Second Motion for Reconsideration Etc. The matter dealt with in Manilabanks motion for contempt - a partys obstinate, importunate and endless reiteration of argument - is one that confronts the Court every now and then. This is regrettable and certainly undesirable. While no one may begrudge the right of a litigant to prosecute or defend his cause with all the vigor and resources at his command, no party may be allowed to persist in presenting to the Court arguments in vindication of his right or defense after these have been pronounced by final judgment to be without merit and his motion for reconsideration of that judgment has been denied. A second motion for reconsideration is forbidden except for extraordinarily persuasive reasons, and only upon express leave first obtained. The propriety or acceptability of such a second motion for reconsideration is not contingent upon the averment of new grounds to assail the judgment, i.e., grounds other than those theretofore presented and rejected. Otherwise, attainment of finality of a judgment might be staved off indefinitely, depending on the partys ingeniousness or cleverness in conceiving and formulating additional flaws or newly discovered errors therein, or thinking up some injury or prejudice to the rights of the movant for reconsideration. Piece-meal impugnation of a judgment by successive motions for reconsideration is anathema, being precluded by the salutary axiom that a party seeking the setting aside of a judgment, act or proceeding must set out in his motion all the grounds therefor, and those not so included are deemed waived and cease to be available for subsequent motions. For all litigation must come to an end at some point, in accordance with established rules of procedure and jurisprudence. As a matter of practice and policy, courts must dispose of every case as promptly as possible; and in fulfillment of their role in the administration of justice, they should brook no delay in the termination of cases by stratagems or maneuverings, of parties or their lawyers. The Court recently had occasion to reaffirm these basic postulates in In Re Joaquin T. Borromeo, viz.: It is x x x of the essence of the judicial function that at some point, litigation must end. Hence, after the .procedures and processes for lawsuits have been undergone, and the modes of review set by law have been exhausted, or terminated, no further ventilation of the same subject matter is allowed. To be sure, there may be, on the part of the losing parties, continuing disagreement with the verdict, and the conclusions therein embodied. This is of no moment, indeed, is to be expected; but, it is not

their will, but the Courts, which must prevail; and, to repeat, public policy demands that at some definite time, the issues must be laid to rest and the courts dispositions thereon accorded absolute finality (with voluminous citations, including Garbo v. Court of Appeals, 226 SCRA 250, G.R.-No. 100474, September 10, 1993; GSIS v. Gines, 219 SCRA 724, G.R. No. 85273, March 9, 1993; Gesulgon v. NLRC, 219 SCRA 561, G.R. No. 90349, March 5, 1993; Paramount Insurance Corporation v. Japson, 211 SCRA 879, G.R. No. 68073, July 29, 1992; Cachola v. CA, 208 SCRA 496, G.R. No. 97822, May 7, 1992; Enriquez v. C. A., 202 SCRA 487, G.R. No. 83720, October 4, 1991; Alvendia v. IAC, 181 SCRA 252, G.R. No. 72138, January 22, 1990, etc.) As observed by this Court in Rheem of the Philippines v. Ferrer, a 1967 decision (20 SCRA 441, 444), a party may think highly of his intellectual endowment. That is his privilege. And he may suffer frustration at what he feels is others lack of it. This is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a courts decision in words calculated to jettison the time-honored aphorism that courts are the temples of right.

encouragement or expectation of a second motion for reconsideration. The modifier serves simply to emphasize the import and effect of the denial of the motion for reconsideration, i.e., that the Court will entertain and consider no further arguments or submissions from the parties respecting its correctness; that in the Courts considered view, nothing more is left to be discussed, clarified or done in the case, all issues raised having been passed upon and definitely resolved, and any other which could have been raised having been waived and no longer being available as ground for a second motion. A denial with finality stresses that the case is considered closed. Thus, the Resolution of January 23, 1995 -denying with finality Molinas motions for reconsideration of the decision of July 25, 1994 in these cases ended all further discussion on the merits of the cases. The effects of such denial with finality were not negated by the filing by Molina of a second motion for reconsideration, even if this was attached to a motion purportedly seeking leave of court to do so. Having in fact been filed without express leave - no such leave ever having been granted, the motion therefor not obviously being the equivalent thereof - it was to all intents mere surplusage that did not need to be acted on, and did not give rise to a pending matter so as to forestall the finality of the decision. What has been stated also suffices to dispose of Molinas theory that her second motion for reconsideration, filed on February 27, 1995, was not covered by the Resolution of March 1, 1995 -in which this Court reiterated the denial with finality of her motions for reconsideration and, in addition, ordered that no further pleadings, motions or papers shall be filed x x x except only as regards the issues directly involved in the Motion for Reconsideration (Re: Dismissal of Respondent Judge); and since Manilabank had manifested that it was no longer filing an opposition thereto, said second motion for reconsideration remains pending and unopposed. To repeat, the second motion for reconsideration, having been filed without express leave, was nothing but a scrap of paper, mere surplusage, incapable of producing any legal effects whatsoever. Nor may Molina derive comfort from her claim that the motion raises new legal issues. Apart from the fact that said new issues are contained in an unauthorized and totally ineffectual motion, they are not in fact new issues, and even if they were, have already been waived and become barred by failure to assert at the first opportunity. It is plain, therefore, that to all intents and purposes, there is no pending second motion for reconsideration requiring action by the Court. The absence of an opposition is also of no moment. It is explained by Manilabank in its Manifestation of March 29, 1995; and even if it were totally unexplained, such absence does not and cannot invest the unauthorized second motion for reconsideration with status or validity. Prohibition to File Further Pleadings Apart from the original directive in its Resolution of March 1, 1995, the Court twice reiterated the admonition that no further pleadings, motions or papers should be filed in these cases, except only as regards issues directly involved in the Motion for Reconsideration (Re: Dismissal of Respondent Judge). This it did in its Resolutions dated July 24 and October 25, 1995, respectively. Evidently, an order of this character is directed to parties who obstinately refuse to accept the Courts final verdict and who, despite such verdict and in defiance of established procedural rules, mulishly persist in still arguing the merits of their cause. They continue to take up the time of the Court needlessly, by filing unauthorized, forbidden, even worthless pleadings, motions and papers, serving no real purpose other than to delay termination of the case. Evidently, too, the directive against the filing of any further pleadings, motions or papers is one that exacts observance by all parties concerned, such that wilful and unjustifiable disregard or disobedience thereof constitutes constructive contempt under Section 3 (b), Rule 71 of the Rules of Court. The record shows just such wilful disobedience or resistance

Effect, and Disposition of Motion for Reconsideration The filing of a motion for reconsideration, authorized by Rule 52 of the Rules of Court, does not impose on the Court the obligation to deal individually and specifically with the grounds relied upon therefor, in much the same way that the Court does in its judgment or final order as regards the issues raised and submitted for decision. This would be a useless formality or ritual invariably involving merely a reiteration of the reasons already set forth in the judgment or final order for rejecting the arguments advanced by the movant; and it would be a needless act, too, with respect to issues raised for the first time, these being, as above stated, deemed waived because not asserted at the first opportunity. It suffices for the Court to deal generally and summarily with the motion for reconsideration, and merely state a legal ground for its denial (Sec. 14, Art. VIII, Constitution); i.e., the motion contains merely a reiteration or rehash of arguments already submitted to and pronounced without merit by the Court in its judgment, or the basic issues have already been passed upon, or the motion discloses no substantial argument or cogent reason to warrant reconsideration or modification of the judgment or final order; or the arguments in the motion are too unsubstantial to require consideration, etc.

Import of Denial of Motion For Reconsideration The denial of a motion for reconsideration signifies that the grounds relied upon have been found, upon due deliberation, to be without merit, as not being of sufficient weight to warrant a modification of the judgment or final order. It means not only that the grounds relied upon are lacking in merit but also that any other, not so raised, is deemed waived and may no longer be set up in a subsequent motion or application to overturn the judgment; and this is true, whatever may be the title given to such motion or application, whether it be second motion for reconsideration or motion for clarification or plea for due process or prayer for a second look, or motion to defer, or set aside, entry of judgment, or motion to refer case to Court En Banc, etc. It is relevant at this point to remind everyone that the Court En Banc is not an appellate tribunal to which appeals from Divisions may be taken. The judgment of a division is as authoritative and as final as that of the Court En Banc. Referrals of cases from a Division to the Court En Banc do not take place as a matter of routine, but only on specified grounds and in the Courts discretion. Denial With Finality While the denial of a motion for reconsideration of a judgment or final order is normally accompanied by the modifier, final, or with finality, there may be a denial not so qualified. That is of no consequence. By no means may it be taken as indicating any uncertainty or indecisiveness on the part of the Court regarding its denial of reconsideration, or an

which is not satisfactorily explained in Molinas Comment/Answer dated October 11, 1995, submitted on requirement by the Court. After her motion for reconsideration of the Decision of July 25, 1994 (as well as the two supplements thereto dated September 22, 1994) had been denied with finality by the Resolution of January 23, 1995; after she had filed an unauthorized and inefficacious second motion for reconsideration dated February 27, 1995; and after she had been served with notice of the Resolution of March 1, 1995 reiterating the denial of her motions for reconsideration and commanding that no further pleadings, motions or papers shall be filed x x x except only as regards the issues directly involved in the Motion for Reconsideration (Re: Dismissal of Respondent Judge), Molina still filed a motion dated April 5, 1995 to have the cases referred to the Court En Banc. The motion essentially reiterated a prayer lifted from her second motion for reconsideration, and was a clear attempt to reopen proceedings. It obviously had nothing whatever to do with the proceedings concerning the complaint against respondent Judge Velasco. After her aforesaid motion of April 5, 1995 was denied by Resolution dated June 19, 1995 (and after another Resolution was issued by the Court dated July 24, 1995, declaring the cases closed and terminated, reiterating the command that no further pleadings, motion or papers be filed, and directing entry of judgment and transmission of the mittimus), Molina filed a consolidated motion dated July 25, 1995, praying for reconsideration of the Resolution of June 19, 1995 and repeating her plea that the cases be referred to the Court En Banc; and another motion, dated August 21, 1995, for reconsideration of the Resolution of July 24, 1995. These two motions were denied by separate Resolutions dated, respectively, August 28, 1995 and October 25, 1995. It is clear that petitioner was bent on pursuing her claims despite the Courts unequivocal declaration that her claims were lacking in merit, that the proceedings were terminated, and that no further pleadings, motions or papers should be filed. Her persistence constitutes a deliberate disregard, even defiance, of these Courts plain orders, and an abuse of the rules of procedure to delay the termination of these cases. Her reiteration of her rejected arguments cannot obliterate their essential and egregious speciousness; and under no circumstances may she or any other litigant or counsel be allowed to engage the Court in interminable squabbling about the correctness of its orders and dispositions. Molina has had more than her day in court. She was accorded more than ample opportunity to present the merits of her case. Her every argument was heard and considered. The Court cannot countenance defiance of its authority on repetitious assertions of the meritoriousness of a partys cause, no matter how sincerely or genuinely entertained. There has been a final determination of the issues in these cases and petitioner has been repeatedly directed to abide thereby. Her deliberate violation of the orders of the Court are unjustified and inexcusable. The refusal of petitioner Molina to concede defeat, manifested by her unceasing attempts to prolong the final disposition of these cases, obstructs the administration of justice and, therefore, constitutes contempt of Court. WHEREFORE, Dolores V. Molina is found GUILTY of contempt of court for willful disregard and disobedience of the Resolutions of the Court, and a FINE OF ONE THOUSAND PESOS (P1,000.00) is hereby imposed on her, payable within five (5) days from receipt of this Resolution, with the warning that any subsequent disregard and disobedience of this Courts orders will be dealt with more severely. Let this Resolution be published in the authorized Court reports for the information and guidance of the bench and the bar respecting the nature and effect of denials of motions for reconsideration of judgments and final orders, the propriety of second motions for reconsideration, and the prohibition against the filing of further pleadings, motions or other papers. IT IS SO ORDERED. FIRST DIVISION

[G.R. No. 147096. January 15, 2002] REPUBLIC OF THE PHILIPPINES, represented by NATIONAL TELECOMMUNICATIONS COMMISSION, petitioner, vs. EXPRESS TELECOMMUNICATION CO., INC. and BAYAN TELECOMMUNICATIONS CO., INC., respondents. [G.R. No. 147210. January 15, 2002] BAYAN TELECOMMUNICATIONS (Bayantel), INC., petitioner, vs. EXPRESS TELECOMMUNICATION CO., INC. (Extelcom), respondent. DECISION YNARES-SANTIAGO, J.: On December 29, 1992, International Communications Corporation (now Bayan Telecommunications, Inc. or Bayantel) filed an application with the National Telecommunications Commission (NTC) for a Certificate of Public Convenience or Necessity (CPCN) to install, operate and maintain a digital Cellular Mobile Telephone System/Service (CMTS) with prayer for a Provisional Authority (PA). The application was docketed as NTC Case No. 92-486. Shortly thereafter, or on January 22, 1993, the NTC issued Memorandum Circular No. 4-1-93 directing all interested applicants for nationwide or regional CMTS to file their respective applications before the Commission on or before February 15, 1993, and deferring the acceptance of any application filed after said date until further orders. On May 6, 1993, and prior to the issuance of any notice of hearing by the NTC with respect to Bayantels original application, Bayantel filed an urgent ex-parte motion to admit an amended application. On May 17, 1993, the notice of hearing issued by the NTC with respect to this amended application was published in the Manila Chronicle. Copies of the application as well as the notice of hearing were mailed to all affected parties. Subsequently, hearings were conducted on the amended application. But before Bayantel could complete the presentation of its evidence, the NTC issued an Order dated December 19, 1993 stating: In view of the recent grant of two (2) separate Provisional Authorities in favor of ISLACOM and GMCR, Inc., which resulted in the closing out of all available frequencies for the service being applied for by herein applicant, and in order that this case may not remain pending for an indefinite period of time, AS PRAYED FOR, let this case be, as it is, hereby ordered ARCHIVED without prejudice to its reinstatement if and when the requisite frequency becomes available. SO ORDERED. On June 18, 1998, the NTC issued Memorandum Circular No. 5-6-98 reallocating five (5) megahertz (MHz) of the radio frequency spectrum for the expansion of CMTS networks. The re-allocated 5 MHz were taken from the following bands: 1730-1732.5 / 1825-1827.5 MHz and 1732.51735 / 1827.5-1830 MHz. Likewise, on March 23, 1999, Memorandum Circular No. 3-3-99 was issued by the NTC re-allocating an additional five (5) MHz frequencies for CMTS service, namely: 1735-1737.5 / 1830-1832.5 MHz; 1737.5-1740 / 1832.5-1835 MHz; 1740-1742.5 / 1835-1837.5 MHz; and 1742.5-1745 / 1837.5-1840 MHz. On May 17, 1999, Bayantel filed an Ex-Parte Motion to Revive Case, citing the availability of new frequency bands for CMTS operators, as provided for under Memorandum Circular No. 3-3-99. On February 1, 2000, the NTC granted BayanTels motion to revive the latters application and set the case for hearings on February 9, 10, 15, 17

and 22, 2000. The NTC noted that the application was ordered archived without prejudice to its reinstatement if and when the requisite frequency shall become available. Respondent Express Telecommunication Co., Inc. (Extelcom) filed in NTC Case No. 92-486 an Opposition (With Motion to Dismiss) praying for the dismissal of Bayantels application. Extelcom argued that Bayantels motion sought the revival of an archived application filed almost eight (8) years ago. Thus, the documentary evidence and the allegations of respondent Bayantel in this application are all outdated and should no longer be used as basis of the necessity for the proposed CMTS service. Moreover, Extelcom alleged that there was no public need for the service applied for by Bayantel as the present five CMTS operators --- Extelcom, Globe Telecom, Inc., Smart Communication, Inc., Pilipino Telephone Corporation, and Isla Communication Corporation, Inc. --- more than adequately addressed the market demand, and all are in the process of enhancing and expanding their respective networks based on recent technological developments. Extelcom likewise contended that there were no available radio frequencies that could accommodate a new CMTS operator as the frequency bands allocated in NTC Memorandum Circular No. 3-3-99 were intended for and had in fact been applied for by the existing CMTS operators. The NTC, in its Memorandum Circular No. 4-1-93, declared it its policy to defer the acceptance of any application for CMTS. All the frequency bands allocated for CMTS use under the NTCs Memorandum Circular No. 5-1188 and Memorandum Circular No. 2-12-92 had already been allocated to the existing CMTS operators. Finally, Extelcom pointed out that Bayantel is its substantial stockholder to the extent of about 46% of its outstanding capital stock, and Bayantels application undermines the very operations of Extelcom. On March 13, 2000, Bayantel filed a Consolidated Reply/Comment, stating that the opposition was actually a motion seeking a reconsideration of the NTC Order reviving the instant application, and thus cannot dwell on the material allegations or the merits of the case. Furthermore, Extelcom cannot claim that frequencies were not available inasmuch as the allocation and assignment thereof rest solely on the discretion of the NTC. In the meantime, the NTC issued on March 9, 2000 Memorandum Circular No. 9-3-2000, re-allocating the following radio frequency bands for assignment to existing CMTS operators and to public telecommunication entities which shall be authorized to install, operate and maintain CMTS networks, namely: 1745-1750MHz / 1840-1845MHz; 1750-1775MHz / 1845-1850MHz; 1765-1770MHz / 1860-1865MHz; and 1770-1775MHz / 1865-1870MHz. On May 3, 2000, the NTC issued an Order granting in favor of Bayantel a provisional authority to operate CMTS service. The Order stated in pertinent part: On the issue of legal capacity on the part of Bayantel, this Commission has already taken notice of the change in name of International Communications Corporation to Bayan Telecommunications, Inc. Thus, in the Decision entered in NTC Case No. 93-284/94-200 dated 19 July 1999, it was recognized that Bayan Telecommunications, Inc., was formerly named International Communications Corp. Bayantel and ICC Telecoms, Inc. are one and the same entity, and it necessarily follows that what legal capacity ICC Telecoms has or has acquired is also the legal capacity that Bayantel possesses. On the allegation that the Commission has committed an error in allowing the revival of the instant application, it appears that the Order dated 14 December 1993 archiving the same was anchored on the non-availability of frequencies for CMTS. In the same Order, it was expressly stated that the archival hereof, shall be without prejudice to its reinstatement if and when the requisite frequency becomes available. Inherent in the said Order is the prerogative of the Commission in reviving the same, subject to prevailing conditions. The Order of 1 February 2001, cited the availability of frequencies for CMTS, and based thereon, the Commission, exercising its prerogative, revived and reinstated the instant application. The fact that

the motion for revival hereof was made ex-parte by the applicant is of no moment, so long as the oppositors are given the opportunity to be later heard and present the merits of their respective oppositions in the proceedings. On the allegation that the instant application is already obsolete and overtaken by developments, the issue is whether applicant has the legal, financial and technical capacity to undertake the proposed project. The determination of such capacity lies solely within the discretion of the Commission, through its applicable rules and regulations. At any rate, the oppositors are not precluded from showing evidence disputing such capacity in the proceedings at hand. On the alleged non-availability of frequencies for the proposed service in view of the pending applications for the same, the Commission takes note that it has issued Memorandum Circular 9-3-2000, allocating additional frequencies for CMTS. The eligibility of existing operators who applied for additional frequencies shall be treated and resolved in their respective applications, and are not in issue in the case at hand. Accordingly, the Motions for Reconsideration filed by SMARTCOM and GLOBE TELECOMS/ISLACOM and the Motion to Dismiss filed by EXTELCOM are hereby DENIED for lack of merit. The grant of the provisional authority was anchored on the following findings: COMMENTS: 1. Due to the operational mergers between Smart Communications, Inc. and Pilipino Telephone Corporation (Piltel) and between Globe Telecom, Inc. (Globe) and Isla Communications, Inc. (Islacom), free and effective competition in the CMTS market is threatened. The fifth operator, Extelcom, cannot provide good competition in as much as it provides service using the analog AMPS. The GSM system dominates the market. 2. There are at present two applicants for the assignment of the frequencies in the 1.7 Ghz and 1.8 Ghz allocated to CMTS, namely Globe and Extelcom. Based on the number of subscribers Extelcom has, there appears to be no congestion in its network - a condition that is necessary for an applicant to be assigned additional frequencies. Globe has yet to prove that there is congestion in its network considering its operational merger with Islacom. 3. Based on the reports submitted to the Commission, 48% of the total number of cities and municipalities are still without telephone service despite the more than 3 million installed lines waiting to be subscribed. CONCLUSIONS: 1. To ensure effective competition in the CMTS market considering the operational merger of some of the CMTS operators, new CMTS operators must be allowed to provide the service. 2. The re-allocated frequencies for CMTS of 3 blocks of 5 Mhz x 2 is sufficient for the number of applicants should the applicants be qualified. 3. There is a need to provide service to some or all of the remaining cities and municipalities without telephone service. 4. The submitted documents are sufficient to determine compliance to the technical requirements. The applicant can be directed to submit details such as channeling plans, exact locations of cell sites, etc. as the project implementation progresses, actual area coverage ascertained and traffic data are made available. Applicant appears to be technically qualified to undertake the proposed project and offer the proposed service. IN VIEW OF THE FOREGOING and considering that there is prima facie evidence to show that Applicant is legally, technically and financially

qualified and that the proposed service is technically feasible and economically viable, in the interest of public service, and in order to facilitate the development of telecommunications services in all areas of the country, as well as to ensure healthy competition among authorized CMTS providers, let a PROVISIONAL AUTHORITY (P.A.) be issued to Applicant BAYAN TELECOMMUNICATIONS, INC. authorizing it to construct, install, operate and maintain a Nationwide Cellular Mobile Telephone Systems (CMTS), subject to the following terms and conditions without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority, in accordance with Section 3, Rule 15, Part IV of the Commissions Rules of Practice and Procedure. xxx. Extelcom filed with the Court of Appeals a petition for certiorari and prohibition, docketed as CA-G.R. SP No. 58893, seeking the annulment of the Order reviving the application of Bayantel, the Order granting Bayantel a provisional authority to construct, install, operate and maintain a nationwide CMTS, and Memorandum Circular No. 9-3-2000 allocating frequency bands to new public telecommunication entities which are authorized to install, operate and maintain CMTS. On September 13, 2000, the Court of Appeals rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, the writs of certiorari and prohibition prayed for are GRANTED. The Orders of public respondent dated February 1, 2000 and May 3, 2000 in NTC Case No. 92-486 are hereby ANNULLED and SET ASIDE and the Amended Application of respondent Bayantel is DISMISSED without prejudice to the filing of a new CMTS application. The writ of preliminary injunction issued under our Resolution dated August 15, 2000, restraining and enjoining the respondents from enforcing the Orders dated February 1, 2000 and May 3, 2000 in the said NTC case is hereby made permanent. The Motion for Reconsideration of respondent Bayantel dated August 28, 2000 is denied for lack of merit. SO ORDERED. Bayantel filed a motion for reconsideration of the above decision. The NTC, represented by the Office of the Solicitor General (OSG), also filed its own motion for reconsideration. On the other hand, Extelcom filed a Motion for Partial Reconsideration, praying that NTC Memorandum Circular No. 9-3-2000 be also declared null and void. On February 9, 2001, the Court of Appeals issued the assailed Resolution denying all of the motions for reconsideration of the parties for lack of merit. Hence, the NTC filed the instant petition for review on certiorari, docketed as G.R. No. 147096, raising the following issues for resolution of this Court: A. Whether or not the Order dated February 1, 2000 of the petitioner which revived the application of respondent Bayantel in NTC Case No. 92486 violated respondent Extelcoms right to procedural due process of law; B. Whether or not the Order dated May 3, 2000 of the petitioner granting respondent Bayantel a provisional authority to operate a CMTS is in substantial compliance with NTC Rules of Practice and Procedure and Memorandum Circular No. 9-14-90 dated September 4, 1990. Subsequently, Bayantel also filed its petition for review, docketed as G.R. No. 147210, assigning the following errors: I. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS INTERPRETATION OF THE PRINCIPLE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES WHEN IT FAILED TO DISMISS HEREIN RESPONDENTS PETITION FOR CERTIORARI DESPITE ITS FAILURE TO FILE A MOTION FOR RECONSIDERATION.

II. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE REVIVAL OF NTC CASE NO. 92-486 ANCHORED ON A EX-PARTE MOTION TO REVIVE CASE WAS TANTAMOUNT TO GRAVE ABUSE OF DISCRETION ON THE PART OF THE NTC. III. THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT DENIED THE MANDATE OF THE NTC AS THE AGENCY OF GOVERNMENT WITH THE SOLE DISCRETION REGARDING ALLOCATION OF FREQUENCY BAND TO TELECOMMUNICATIONS ENTITIES. IV. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS INTERPRETATION OF THE LEGAL PRINCIPLE THAT JURISDICTION ONCE ACQUIRED CANNOT BE LOST WHEN IT DECLARED THAT THE ARCHIVED APPLICATION SHOULD BE DEEMED AS A NEW APPLICATION IN VIEW OF THE SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES ALLEGED IN ITS AMENDMENT APPLICATION. V. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE ARCHIVING OF THE BAYANTEL APPLICATION WAS A VALID ACT ON THE PART OF THE NTC EVEN IN THE ABSENCE OF A SPECIFIC RULE ON ARCHIVING OF CASES SINCE RULES OF PROCEDURE ARE, AS A MATTER OF COURSE, LIBERALLY CONSTRUED IN PROCEEDINGS BEFORE ADMINISTRATIVE BODIES AND SHOULD GIVE WAY TO THE GREATER HIERARCHY OF PUBLIC WELFARE AND PUBLIC INTEREST. VI. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE ARCHIVING OF BAYANTELS APPLICATION WAS NOT VIOLATIVE OF THE SUMMARY NATURE OF THE PROCEEDINGS IN THE NTC UNDER SEC. 3, RULE 1 OF THE NTC REVISED RULES OF PROCEDURE. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE ARCHIVING OF BAYANTELS APPLICATION WAS VIOLATIVE OF THE ALLEGED DECLARED POLICY OF THE GOVERNMENT ON THE TRANSPARENCY AND FAIRNESS OF ADMINISTRATIVE PROCESS IN THE NTC AS LAID DOWN IN SEC 4(1) OF R.A. NO. 7925. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE NTC VIOLATED THE PROVISIONS OF THE CONSTITUTION PERTAINING TO DUE PROCESS OF LAW.

VII.

VIII.

IX. THE COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THAT THE MAY 3, 2000 ORDER GRANTING BAYANTEL A PROVISIONAL AUTHORITY SHOULD BE SET ASIDE AND REVERSED. i. Contrary to the finding of the Court of Appeals, there was no violation of the NTC Rule that the legal, technical, financial and economic documentations in support of the prayer for provisional authority should first be submitted. ii. Contrary to the finding of the Court of Appeals, there was no violation of Sec. 3, Rule 15 of the NTC Rules of Practice and Procedure that a motion must first be filed before a provisional authority could be issued. iii. Contrary to the finding of the Court of Appeals that a plea for provisional authority necessitates a notice and hearing, the very rule cited by the petitioner (Section 5, Rule 4 of the NTC Rules of Practice and Procedure) provides otherwise. iv. Contrary to the finding of the Court of Appeals, urgent public need is not the only basis for the grant of a provisional authority to an applicant;

v. Contrary to the finding of the Court of Appeals, there was no violation of the constitutional provision on the right of the public to information when the Common Carrier Authorization Department (CCAD) prepared its evaluation report. Considering the identity of the matters involved, this Court resolved to consolidate the two petitions. At the outset, it is well to discuss the nature and functions of the NTC, and analyze its powers and authority as well as the laws, rules and regulations that govern its existence and operations. The NTC was created pursuant to Executive Order No. 546, promulgated on July 23, 1979. It assumed the functions formerly assigned to the Board of Communications and the Telecommunications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTCs functions were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-interest of the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the Department of Transportation and Communications. In the regulatory telecommunications industry, the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communications systems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public services within the Philippines whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner. The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act, the pertinent portion of which states: All hearings and investigations before the Commission shall be governed by rules adopted by the Commission, and in the conduct thereof, the Commission shall not be bound by the technical rules of legal evidence. xxx. In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides: Sec. 3. Provisional Relief. --- Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. (underscoring ours) Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3, 1993. These Revised Rules deleted the phrase on its own initiative; accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission. In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules. The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1978 Rules, clearly indicate that the 1993 Revised Rules have not taken

effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states: Filing. --- (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain or disciplinary action. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs. In a similar case, we held: This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. x x x The fact that the amendments to Administrative Order No. SOCPEC 89-0801 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order. This Court, in Taada vs. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446) stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the socalled letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. x x x We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.

The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case Taada v. Tuvera. Our pronouncement in Taada vs. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation. In the absence of such publication, therefore, it is the 1978 Rules that governs. In any event, regardless of whether the 1978 Rules or the 1993 Revised Rules should apply, the records show that the amended application filed by Bayantel in fact included a motion for the issuance of a provisional authority. Hence, it cannot be said that the NTC granted the provisional authority motu proprio. The Court of Appeals, therefore, erred when it found that the NTC issued its Order of May 3, 2000 on its own initiative. This much is acknowledged in the Decision of the Court of Appeals: As prayer, ICC asked for the immediate grant of provisional authority to construct, install, maintain and operate the subject service and to charge the proposed rates and after due notice and hearing, approve the instant application and grant the corresponding certificate of public convenience and necessity. The Court of Appeals also erred when it declared that the NTCs Order archiving Bayantels application was null and void. The archiving of cases is a widely accepted measure designed to shelve cases in which no immediate action is expected but where no grounds exist for their outright dismissal, albeit without prejudice. It saves the petitioner or applicant from the added trouble and expense of re-filing a dismissed case. Under this scheme, an inactive case is kept alive but held in abeyance until the situation obtains wherein action thereon can be taken. In the case at bar, the said application was ordered archived because of lack of available frequencies at the time, and made subject to reinstatement upon availability of the requisite frequency. To be sure, there was nothing irregular in the revival of the application after the condition therefor was fulfilled. While, as held by the Court of Appeals, there are no clear provisions in the Rules of the NTC which expressly allow the archiving of any application, this recourse may be justified under Rule 1, Section 2 of the 1978 Rules, which states: Sec. 2. Scope.--- These rules govern pleadings, practice and procedure before the Board of Communications ( now NTC) in all matters of hearing,

investigation and proceedings within the jurisdiction of the Board. However, in the broader interest of justice and in order to best serve the public interest, the Board may, in any particular matter, except it from these rules and apply such suitable procedure to improve the service in the transaction of the public business. (underscoring ours) The Court of Appeals ruled that the NTC committed grave abuse of discretion when it revived Bayantels application based on an ex-parte motion. In this regard, the pertinent provisions of the NTC Rules: Sec. 5. Ex-parte Motions. --- Except for motions for provisional authorization of proposed services and increase of rates, ex-parte motions shall be acted upon by the Board only upon showing of urgent necessity therefor and the right of the opposing party is not substantially impaired. Thus, in cases which do not involve either an application for rate increase or an application for a provisional authority, the NTC may entertain exparte motions only where there is an urgent necessity to do so and no rights of the opposing parties are impaired. The Court of Appeals ruled that there was a violation of the fundamental right of Extelcom to due process when it was not afforded the opportunity to question the motion for the revival of the application. However, it must be noted that said Order referred to a simple revival of the archived application of Bayantel in NTC Case No. 92-426. At this stage, it cannot be said that Extelcoms right to procedural due process was prejudiced. It will still have the opportunity to be heard during the full-blown adversarial hearings that will follow. In fact, the records show that the NTC has scheduled several hearing dates for this purpose, at which all interested parties shall be allowed to register their opposition. We have ruled that there is no denial of due process where full-blown adversarial proceedings are conducted before an administrative body. With Extelcom having fully participated in the proceedings, and indeed, given the opportunity to file its opposition to the application, there was clearly no denial of its right to due process. In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only refer to the right to present verbal arguments in court. A party may also be heard through his pleadings. where opportunity to be heard is accorded either through oral arguments or pleadings, there is no denial of procedural due process. As reiterated in National Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side. Hence, in Navarro III vs. Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hearing is not at all times and not in all instances essential. Plainly, petitioner was not denied due process. Extelcom had already entered its appearance as a party and filed its opposition to the application. It was neither precluded nor barred from participating in the hearings thereon. Indeed, nothing, not even the Order reviving the application, bars or prevents Extelcom and the other oppositors from participating in the hearings and adducing evidence in support of their respective oppositions. The motion to revive could not have possibly caused prejudice to Extelcom since the motion only sought the revival of the application. It was merely a preliminary step towards the resumption of the hearings on the application of Bayantel. The latter will still have to prove its capability to undertake the proposed CMTS. Indeed, in its Order dated February 1, 2000, the NTC set several hearing dates precisely intended for the presentation of evidence on Bayantels capability and qualification. Notice of these hearings were sent to all parties concerned, including Extelcom. As regards the changes in the personal circumstances of Bayantel, the same may be ventilated at the hearings during Bayantels presentation of evidence. In fact, Extelcom was able to raise its arguments on this matter in the Opposition (With Motion to Dismiss) anent the re-opening and reinstatement of the application of Bayantel. Extelcom was thus heard on this particular point.

Likewise, the requirements of notice and publication of the application is no longer necessary inasmuch as the application is a mere revival of an application which has already been published earlier. At any rate, the records show that all of the five (5) CMTS operators in the country were duly notified and were allowed to raise their respective oppositions to Bayantels application through the NTCs Order dated February 1, 2000. It should be borne in mind that among the declared national policies under Republic Act No. 7925, otherwise known as the Public Telecommunications Policy Act of the Philippines, is the healthy competition among telecommunications carriers, to wit: A healthy competitive environment shall be fostered, one in which telecommunications carriers are free to make business decisions and to interact with one another in providing telecommunications services, with the end in view of encouraging their financial viability while maintaining affordable rates. The NTC is clothed with sufficient discretion to act on matters solely within its competence. Clearly, the need for a healthy competitive environment in telecommunications is sufficient impetus for the NTC to consider all those applicants who are willing to offer competition, develop the market and provide the environment necessary for greater public service. This was the intention that came to light with the issuance of Memorandum Circular 9-3-2000, allocating new frequency bands for use of CMTS. This memorandum circular enumerated the conditions prevailing and the reasons which necessitated its issuance as follows: - the international accounting rates are rapidly declining, threatening the subsidy to the local exchange service as mandated in EO 109 and RA 7925; - the public telecommunications entities which were obligated to install, operate and maintain local exchange network have performed their obligations in varying degrees; - after more than three (3) years from the performance of the obligations only 52% of the total number of cities and municipalities are provided with local telephone service. - there are mergers and consolidations among the existing cellular mobile telephone service (CMTS) providers threatening the efficiency of competition; - there is a need to hasten the installation of local exchange lines in unserved areas; - there are existing CMTS operators which are experiencing congestion in the network resulting to low grade of service; - the consumers/customers shall be given the freedom to choose CMTS operators from which they could get the service. Clearly spelled out is the need to provide enhanced competition and the requirement for more landlines and telecommunications facilities in unserved areas in the country. On both scores, therefore, there was sufficient showing that the NTC acted well within its jurisdiction and in pursuance of its avowed duties when it allowed the revival of Bayantels application. We now come to the issue of exhaustion of administrative remedies. The rule is well-entrenched that a party must exhaust all administrative remedies before resorting to the courts. The premature invocation of the intervention of the court is fatal to ones cause of action. This rule would not only give the administrative agency an opportunity to decide the matter by itself correctly, but would also prevent the unnecessary and premature resort to courts. In the case of Lopez v. City of Manila, we held:

As a general rule, where the law provides for the remedies against the action of an administrative board, body or officer, relief to courts can be sought only after exhausting all remedies provided. The reason rests upon the presumption that the administrative body, if given the chance to correct its mistake or error, may amend its decision on a given matter and decide it properly. Therefore, where a remedy is available within the administrative machinery, this should be resorted to before resort can be made to the courts, not only to give the administrative agency the opportunity to decide the matter by itself correctly, but also to prevent unnecessary and premature resort to courts. Clearly, Extelcom violated the rule on exhaustion of administrative remedies when it went directly to the Court of Appeals on a petition for certiorari and prohibition from the Order of the NTC dated May 3, 2000, without first filing a motion for reconsideration. It is well-settled that the filing of a motion for reconsideration is a prerequisite to the filing of a special civil action for certiorari. The general rule is that, in order to give the lower court the opportunity to correct itself, a motion for reconsideration is a prerequisite to certiorari. It also basic that petitioner must exhaust all other available remedies before resorting to certiorari. This rule, however, is subject to certain exceptions such as any of the following: (1) the issues raised are purely legal in nature, (2) public interest is involved, (3) extreme urgency is obvious or (4) special circumstances warrant immediate or more direct action. This case does not fall under any of the recognized exceptions to this rule. Although the Order of the NTC dated May 3, 2000 granting provisional authority to Bayantel was immediately executory, it did not preclude the filing of a motion for reconsideration. Under the NTC Rules, a party adversely affected by a decision, order, ruling or resolution may within fifteen (15) days file a motion for reconsideration. That the Order of the NTC became immediately executory does not mean that the remedy of filing a motion for reconsideration is foreclosed to the petitioner. Furthermore, Extelcom does not enjoy the grant of any vested interest on the right to render a public service. The Constitution is quite emphatic that the operation of a public utility shall not be exclusive. Thus: No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted to citizens of the Philippines or to corporations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. xxx xxx xxx. In Radio Communications of the Phils., Telecommunications Commission, we held: Inc. v. National

It is well within the powers of the public respondent to authorize the installation by the private respondent network of radio communications systems in Catarman, Samar and San Jose, Mindoro. Under the circumstances, the mere fact that the petitioner possesses a franchise to put up and operate a radio communications system in certain areas is not an insuperable obstacle to the public respondents issuing the proper certificate to an applicant desiring to extend the same services to those areas. The Constitution mandates that a franchise cannot be exclusive in nature nor can a franchise be granted except that it must be subject to amendment, alteration, or even repeal by the legislature when the common good so requires. (Art. XII, sec. 11 of the 1986 Constitution). There is an express provision in the petitioners franchise which provides compliance with the above mandate (RA 2036, sec. 15). Even in the provisional authority granted to Extelcom, it is expressly stated that such authority is not exclusive. Thus, the Court of Appeals erred when it gave due course to Extelcoms petition and ruled that it constitutes an exception to the rule on exhaustion of administrative remedies.

Also, the Court of Appeals erred in annulling the Order of the NTC dated May 3, 2000, granting Bayantel a provisional authority to install, operate and maintain CMTS. The general rule is that purely administrative and discretionary functions may not be interfered with by the courts. Thus, in Lacuesta v. Herrera, it was held: xxx (T)he powers granted to the Secretary of Agriculture and Commerce (natural resources) by law regarding the disposition of public lands such as granting of licenses, permits, leases and contracts, or approving, rejecting, reinstating, or canceling applications, are all executive and administrative in nature. It is a well recognized principle that purely administrative and discretionary functions may not be interfered with by the courts. (Coloso vs. Board of Accountancy, G.R. No. L-5750, April 20, 1953) In general, courts have no supervising power over the proceedings and actions of the administrative departments of the government. This is generally true with respect to acts involving the exercise of judgement or discretion and findings of fact. (54 Am. Jur. 558-559) xxx. The established exception to the rule is where the issuing authority has gone beyond its statutory authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty or with grave abuse of discretion. None of these obtains in the case at bar. Moreover, in petitions for certiorari, evidentiary matters or matters of fact raised in the court below are not proper grounds nor may such be ruled upon in the proceedings. As held in National Federation of Labor v. NLRC: At the outset, it should be noted that a petition for certiorari under Rule 65 of the Rules of Court will prosper only if there is a showing of grave abuse of discretion or an act without or in excess of jurisdiction on the part of the National Labor Relations Commission. It does not include an inquiry as to the correctness of the evaluation of evidence which was the basis of the labor official or officer in determining his conclusion. It is not for this Court to re-examine conflicting evidence, re-evaluate the credibility of witnesses nor substitute the findings of fact of an administrative tribunal which has gained expertise in its special field. Considering that the findings of fact of the labor arbiter and the NLRC are supported by evidence on record, the same must be accorded due respect and finality. This Court has consistently held that the courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency. It has also been held that the exercise of administrative discretion is a policy decision and a matter that can best be discharged by the government agency concerned, and not by the courts. In Villanueva v. Court of Appeals, it was held that findings of fact which are supported by evidence and the conclusion of experts should not be disturbed. This was reiterated in Metro Transit Organization, Inc. v. National Labor Relations Commission, wherein it was ruled that factual findings of quasi-judicial bodies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality and are binding even upon the Supreme Court if they are supported by substantial evidence. Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of its adjudicative functions. This latitude includes the authority to take judicial notice of facts within its special competence. In the case at bar, we find no reason to disturb the factual findings of the NTC which formed the basis for awarding the provisional authority to Bayantel. As found by the NTC, Bayantel has been granted several provisional and permanent authorities before to operate various telecommunications services. Indeed, it was established that Bayantel was the first company to comply with its obligation to install local exchange lines pursuant to E.O. 109 and R.A. 7925. In recognition of the same, the provisional authority awarded in favor of Bayantel to operate Local Exchange Services in Quezon City, Malabon, Valenzuela and the entire Bicol region was made permanent and a CPCN for the said service was granted in its favor. Prima facie evidence was likewise found showing

Bayantels legal, financial and technical capacity to undertake the proposed cellular mobile telephone service. Likewise, the May 3, 2000 Order did not violate NTC Memorandum Circular No. 9-14-90 dated September 4, 1990, contrary to the ruling of the Court of Appeals. The memorandum circular sets forth the procedure for the issuance of provisional authority thus: EFFECTIVE THIS DATE, and as part of the Commissions drive to streamline and fast track action on applications/petitions for CPCN other forms of authorizations, the Commission shall be evaluating applications/petitions for immediate issuance of provisional authorizations, pending hearing and final authorization of an application on its merit. For this purpose, it is hereby directed that all applicants/petitioners seeking for provisional authorizations, shall submit immediately to the Commission, either together with their application or in a Motion all their legal, technical, financial, economic documentations in support of their prayer for provisional authorizations for evaluation. On the basis of their completeness and their having complied with requirements, the Commission shall be issuing provisional authorizations. Clearly, a provisional authority may be issued even pending hearing and final determination of an application on its merits. Finally, this Court finds that the Manifestations of Extelcom alleging forum shopping on the part of the NTC and Bayantel are not impressed with merit. The divisions of the Supreme Court are not to be considered as separate and distinct courts. The Supreme Court remains a unit notwithstanding that it works in divisions. Although it may have three divisions, it is but a single court. Actions considered in any of these divisions and decisions rendered therein are, in effect, by the same Tribunal. The divisions of this Court are not to be considered as separate and distinct courts but as divisions of one and the same court. Moreover, the rules on forum shopping should not be literally interpreted. We have stated thus: It is scarcely necessary to add that Circular No. 28-91 must be so interpreted and applied as to achieve the purposes projected by the Supreme Court when it promulgated that circular. Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objection or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible. Even assuming that separate actions have been filed by two different parties involving essentially the same subject matter, no forum shopping was committed as the parties did not resort to multiple judicial remedies. The Court, therefore, directed the consolidation of the two cases because they involve essentially the same issues. It would also prevent the absurd situation wherein two different divisions of the same court would render altogether different rulings in the cases at bar. We rule, likewise, that the NTC has legal standing to file and initiate legal action in cases where it is clear that its inaction would result in an impairment of its ability to execute and perform its functions. Similarly, we have previously held in Civil Service Commission v. Dacoycoy that the Civil Service Commission, as an aggrieved party, may appeal the decision of the Court of Appeals to this Court. As correctly stated by the NTC, the rule invoked by Extelcom is Rule 65 of the Rules of Civil Procedure, which provides that public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. The instant petition, on the other hand, was filed under Rule 45 where no similar proscription exists.

WHEREFORE, in view of the foregoing, the consolidated petitions are GRANTED. The Court of Appeals Decision dated September 13, 2000 and Resolution dated February 9, 2001 are REVERSED and SET ASIDE. The permanent injunction issued by the Court of Appeals is LIFTED. The Orders of the NTC dated February 1, 2000 and May 3, 2000 are REINSTATED. No pronouncement as to costs. SO ORDERED. SPECIAL SECOND DIVISION [G.R. No. 131457. August 19, 1999] HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON. REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR MANAGEMENT AND DEVELOPMENT CORPORATION, petitioners, vs. HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON. ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondents. RESOLUTION YNARES-SANTIAGO, J.: This resolves the pending incidents before us, namely, respondents and intervenors separate motions for reconsideration of our Resolution dated November 17, 1998, as well as their motions to refer this case to this Court en banc. Respondents and intervenors jointly argue, in fine, that our Resolution dated November 17, 1998, wherein we voted two-two on the separate motions for reconsideration of our earlier Decision of April 24, 1998, as a result of which the Decision was deemed affirmed, did not effectively resolve the said motions for reconsideration inasmuch as the matter should have been referred to the Court sitting en banc, pursuant to Article VIII, Section 4(3) of the Constitution. Respondents and intervenors also assail our Resolution dated January 27, 1999, wherein we noted without action the intervenors Motion For Reconsideration With Motion To Refer The Matter To The Court En Banc filed on December 3, 1998, on the following considerations, to wit: the movants have no legal personality to further seek redress before the Court after their motion for leave to intervene in this case was denied in the April 24, 1998 Decision. Their subsequent motion for reconsideration of the said decision, with a prayer to resolve the motion to the Court En Banc, was also denied in the November 17, 1998 Resolution of the Court. Besides, their aforesaid motion of December 3, 1998 is in the nature of a second motion for reconsideration which is a forbidden motion (Section 2, Rule 52 in relation to Section 4, Rule 56 of the 1997 Rules of Civil Procedure). The impropriety of movants December 3, 1998 motion becomes all the more glaring considering that all the respondents in this case did not anymore join them (movants) in seeking a reconsideration of the November 17, 1998 Resolution. Subsequently, respondents, through the Office of the Solicitor General, filed their Motion For Reconsideration Of The Resolution Dated November 17, 1998 And For Referral Of The Case To This Honorable Court En Banc (With Urgent Prayer For Issuance Of A Restraining Order) on December 3, 1998, accompanied by a Manifestation and Motion and a copy of the Registered Mail Bill evidencing filing of the said motion for reconsideration to this Court by registered mail. In their respective motions for reconsideration, both respondents and intervenors pray that this case be referred to this Court en banc. They contend that inasmuch as their earlier motions for reconsideration (of the Decision dated April 24, 1998) were resolved by a vote of two-two, the required number to carry a decision, i.e., three, was not met. Consequently,

the case should be referred to and be decided by this Court en banc, relying on the following constitutional provision: Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. A careful reading of the above constitutional provision, however, reveals the intention of the framers to draw a distinction between cases, on the one hand, and matters, on the other hand, such that cases are decided while matters, which include motions, are resolved. Otherwise put, the word decided must refer to cases; while the word resolved must refer to matters, applying the rule of reddendo singula singulis. This is true not only in the interpretation of the above-quoted Article VIII, Section 4(3), but also of the other provisions of the Constitution where these words appear. With the aforesaid rule of construction in mind, it is clear that only cases are referred to the Court en banc for decision whenever the required number of votes is not obtained. Conversely, the rule does not apply where, as in this case, the required three votes is not obtained in the resolution of a motion for reconsideration. Hence, the second sentence of the aforequoted provision speaks only of case and not matter. The reason is simple. The above-quoted Article VIII, Section 4(3) pertains to the disposition of cases by a division. If there is a tie in the voting, there is no decision. The only way to dispose of the case then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the division and the losing party files a motion for reconsideration, the failure of the division to resolve the motion because of a tie in the voting does not leave the case undecided. There is still the decision which must stand in view of the failure of the members of the division to muster the necessary vote for its reconsideration. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The assailed decision is not reconsidered and must therefore be deemed affirmed. Such was the ruling of this Court in the Resolution of November 17, 1998. It is the movants further contention in support of their plea for the referral of this case to the Court en banc that the issues submitted in their separate motions are of first impression. In the opinion penned by Mr. Justice Antonio M. Martinez during the resolution of the motions for reconsideration on November 17, 1998, the following was expressed: Regrettably, the issues presented before us by the movants are matters of no extraordinary import to merit the attention of the Court en banc. Specifically, the issue of whether or not the power of the local government units to reclassify lands is subject to the approval of the DAR is no longer novel, this having been decided by this Court in the case of Province of Camarines Sur, et al. vs. Court of Appeals wherein we held that local government units need not obtain the approval of the DAR to convert or reclassify lands from agricultural to non-agricultural use. The dispositive portion of the Decision in the aforecited case states: WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is set aside insofar as it (a) nullifies the trial courts order allowing the Province of Camarines Sur to take possession of private respondents property; (b) orders the trial court to suspend the expropriation proceedings; and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify private respondents property from agricultural to non-agricultural use. xxx supplied) Moreover, the Decision sought to be reconsidered was arrived at by a unanimous vote of all five (5) members of the Second Division of this Court. Stated otherwise, this Second Division is of the opinion that the xxx xxx (Emphasis

matters raised by movants are nothing new and do not deserve the consideration of the Court en banc. Thus, the participation of the full Court in the resolution of movants motions for reconsideration would be inappropriate. The contention, therefore, that our Resolution of November 17, 1998 did not dispose of the earlier motions for reconsideration of the Decision dated April 24, 1998 is flawed. Consequently, the present motions for reconsideration necessarily partake of the nature of a second motion for reconsideration which, according to the clear and unambiguous language of Rule 56, Section 4, in relation to Rule 52, Section 2, of the 1997 Rules of Civil Procedure, is prohibited. True, there are exceptional cases when this Court may entertain a second motion for reconsideration, such as where there are extraordinarily persuasive reasons. Even then, we have ruled that such second motions for reconsideration must be filed with express leave of court first obtained. In this case, not only did movants fail to ask for prior leave of court, but more importantly, they have been unable to show that there are exceptional reasons for us to give due course to their second motions for reconsideration. Stripped of the arguments for referral of this incident to the Court en banc, the motions subject of this resolution are nothing more but rehashes of the motions for reconsideration which have been denied in the Resolution of November 17, 1998. To be sure, the allegations contained therein have already been raised before and passed upon by this Court in the said Resolution. The crux of the controversy is the validity of the Win-Win Resolution dated November 7, 1997. We maintain that the same is void and of no legal effect considering that the March 29, 1996 decision of the Office of the President had already become final and executory even prior to the filing of the motion for reconsideration which became the basis of the said Win-Win Resolution. This ruling, quite understandably, sparked a litany of protestations on the part of respondents and intervenors including entreaties for a liberal interpretation of the rules. The sentiment was that notwithstanding its importance and far-reaching effects, the case was disposed of on a technicality. The situation, however, is not as simple as what the movants purport it to be. While it may be true that on its face the nullification of the Win-Win Resolution was grounded on a procedural rule pertaining to the reglementary period to appeal or move for reconsideration, the underlying consideration therefor was the protection of the substantive rights of petitioners. The succinct words of Mr. Justice Artemio V. Panganiban are quoted in the November 17, 1998 opinion of Mr. Justice Martinez, viz: Just as a losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his/her case. In other words, the finality of the March 29, 1996 OP Decision accordingly vested appurtenant rights to the land in dispute on petitioners as well as on the people of Bukidnon and other parts of the country who stand to be benefited by the development of the property. The issue in this case, therefore, is not a question of technicality but of substance and merit. Before finally disposing of these pending matters, we feel it necessary to rule once and for all on the legal standing of intervenors in this case. In their present motions, intervenors insist that they are real parties in interest inasmuch as they have already been issued certificates of land ownership award, or CLOAs, and that while they are seasonal farmworkers at the plantation, they have been identified by the DAR as qualified beneficiaries of the property. These arguments are, however, nothing new as in fact they have already been raised in intervenors earlier motion for reconsideration of our April 24, 1998 Decision. Again as expressed in the opinion of Mr. Justice Martinez, intervenors, who are admittedly not regular but seasonal farmworkers, have no legal or actual and substantive interest over the subject land inasmuch as they have no right to own the land. Rather, their right is limited only to a just share of the fruits of the land. Moreover, the Win-Win Resolution itself states that the qualified beneficiaries have yet to be carefully and meticulously determined by the Department of Agrarian Reform. Absent any definitive finding of the Department of Agrarian Reform, intervenors cannot as yet be deemed vested with sufficient interest in the controversy as to be qualified to intervene in this case. Likewise, the issuance of the CLOA's to them does not grant them the requisite standing

in view of the nullity of the Win-Win Resolution. No legal rights can emanate from a resolution that is null and void. WHEREFORE, based on the foregoing, the following incidents, namely: intervenors Motion For Reconsideration With Motion To Refer The Matter To The Court En Banc, dated December 3, 1998; respondents Motion For Reconsideration Of The Resolution Dated November 17, 1998 And For Referral Of The Case To This Honorable Court En Banc (With Urgent Prayer For Issuance Of A Restraining Order), dated December 2, 1998; and intervenors Urgent Omnibus Motion For The Supreme Court Sitting En Banc To Annul The Second Divisions Resolution Dated 27 January 1999 And Immediately Resolve The 28 May 1998 Motion For Reconsideration Filed By The Intervenors, dated March 2, 1999; are all DENIED with FINALITY. No further motion, pleading, or paper will be entertained in this case. SO ORDERED. Melo, J., see separate opinion. Puno, J., in the result, he maintain his original position that the case should go to CA for further proceedings. Mendoza, J., in the result.
SEPARATE OPINION

MELO, J.: On the merits, I still maintain my vote with Mr. Justice Puno that this case should be referred to the Court of Appeals for further proceedings. Since what is now before us is a second motion for reconsideration, which under the rules is generally proscribed, the majority deemed it pertinent to limit its resolution in regard to cogent procedural points. At the outset, I wish to point out that inasmuch as I am bound to abide by the Court En Bancs Resolution No. 99-1-09-SC dated January 22, 1999, which settled the issue of an even (2-2) vote in a division, I am constrained to vote with the majority in denying all of the subject motions in the abovecaptioned case. Nevertheless, I wish to express my views on this issue and put them on record, so, in the event that the Court decides to re-open and re-discuss this issue at some future time, these considerations may be referred to. I continue to have some reservations regarding the majoritys position regarding an even (2-2) vote in a division, due to the following considerations: By mandate of the Constitution, cases heard by a division when the required majority of at least 3 votes in the division is not obtained are to be heard and decided by the Court En Banc. Specifically, Paragraph 3, Section 4, Article VIII of the Constitution provides that: xxx (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such members. When the required number is not obtained, the case shall be decided en banc: provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. The deliberations of the 1986 Constitutional Commission disclose that if the case is not decided in a division by a majority vote, it goes to the

Court En Banc and not to a larger division. Moreover, the elevation of a case to the Banc shall be automatic. Thus, MR. RODRIGO: clarification. Madam President, may I ask some questions for

This is not true all the time. It may be true only in original cases, as opposed to appealed cases, filed with the Court. However, because of the doctrine of hierarchy of courts, the only original cases which are taken cognizance of by this Court are those wherein it has exclusive jurisdiction. But, invariably, these cases are all required by the Constitution to be heard by the Court En Banc. So, there will be no instance when a division will be ever taking cognizance of an original action filed with this Court. It may be noted that cases taken cognizance of by the divisions are either petitions for review on certiorari under Rule 45 or petitions for certiorari, prohibition or mandamus, under Rule 65. Under Rule 45, appeal by way of petition for review on certiorari is not a matter of right. Thus, should there be a tie in the voting on deliberation of a case by the division, although apparently no action is passed, a decision may still be renderedthe petition is hereby DENIED due course, and it is forthwith DISMISSED. This is definitely in consonance with the majoritys line of reasoning in the 2-2 vote on motions for reconsideration. But why is that, the 2-2 vote in the deliberation of the case at the first instance should still be referred to the Court En Banc? The reason is simple. Because the express provision of the Constitution requires a vote of at least three justices for there to be a valid and binding decision of the Court. But, why do we not apply the same rule to motions for reconsideration? Even on this score alone, it is my view that, in all instances, whether it be in the deliberations of a case at first instance or on a motion for reconsideration, a division having a 2-2 vote cannot pass action. I submit that the requirement of 3 votes equally applies to motions for reconsideration because the provision contemplates cases or matters (which for me has no material distinction insofar as divisions are concerned) heard by a division, and a motion for reconsideration cannot be divorced from the decision in a case that it seeks to be reconsidered. Consequently, if the required minimum majority of 3 votes is not met, the matter of the motion for reconsideration has to be heard by the Court En Banc, as mandated by the Constitution (par. 3, Sec. 4, Art. VIII). To say that the motion is lost in the division on a 2-2 vote, is to construe something which cannot be sustained by a reading of the Constitution. To argue that a motion for reconsideration is not a case but only a matter which does not concern a case, so that, even though the vote thereon in the division is 2-2, the matter or issue is not required to elevated to the Court En Banc, is to engage in a lot of unfounded hairsplitting. Furthermore, I humbly submit that the theory of leaving the issue hanging on a 2-2 vote or any even vote may be sustained only in cases where there is no recourse to a higher assemblage. In the Court of Appeals, for instance, an even vote in a division of 5 (2-2, with 1 abstaining) would result in the motion not being carried, but only because there is and there cannot be recourse to the Court of Appeals En Banc which, does not act on judicial matters. In a legislative body, an even vote results in the failure of the proposition, only because there is no higher body which can take over. In our own Court En Banc, if the voting is evenly split, on a 7-7 vote with 1 slot vacant, or with 1 justice inhibiting or disqualifying himself, the motion shall, of course, not be carried because that is the end of the line. But in the situation now facing us, the even vote is in a division, and there being recourse to the Court En Banc, and more so, this being expressly directed by the Constitution, the matter of the motion for reconsideration should, by all means, be decided by the Court En Banc. EN BANC [G.R. No. 127022. June 28, 2000] FIRESTONE CERAMICS, INC., BOOMTOWN DEVELOPMENT CORPORATION, Spouses CYNTHIA D. CHING and CHING TIONG KENG, Spouses CARMEN SOCO and LORENZO ONG ENG CHONG, Spouses SOLEDAD B. YU and YU SY CHIA and LETICIA NOCOM CHAN, petitioners, vs. COURT OF APPEALS, LORENZO J. GANA, PATROCINIO E. MARGOLLES, ALICE E.

MR. PRESIDENT: Commissioner Rodrigo is recognized. MR. RODRIGO: Under these provisions, there are 3 kinds of divisions : one would be a division composed of 3 justices in which case there will be 5 divisions; another division is composed of 5 justices each, in which case there will be 3 divisions; and the other is composed of 7 members each, in which case, there will be 2 divisions. Let us take the smallest division of 3 and the vote is 2-1. So, it is less than 3 votes. Should it immediately go to the court en banc of 15 justices or should it first go to a bigger division? MR. CONCEPCION: MR. RODRIGO: MR. SUAREZ: Yes.

They immediately go to the court en banc? Yes, Madam President.

MR. RODRIGO: Is that automatic? Let us say that in the division of 3, the vote is 2-1, automatically it goes to the court en banc? MR. SUAREZ: Yes, because the required number of 3 is not obtained. So, this last phrase would operate automatically WHEN THE REQUIRED NUMBER IS NOT OBTAINED, THE CASE SHALL BE DECIDED EN BANC. xxx (V Record 635, Oct. 8, 1986) Explicit, therefore, is the requirement that at least 3 members must concur in any case or matter heard by a division. Failing thus, or, when the required number of 3 votes is not obtained, the case or matter will have to be decided by the Court En Banc. In a situation where a division of 5 has only 4 members, the 5 th member having inhibited himself or is otherwise not in a position to participate, or has retired, a minimum of 3 votes would still be required before there can be any valid decision or resolution by that division. There may, then, be instances when a deadlock may occur, i.e., the votes tied at 2-2. It is my humble view that under the clear and unequivocal provisions of the 1986 Constitution, if the required majority is not reached in a division, the case should automatically go to Court En Banc. A distinction has been made between cases and matters referred to in the above-quoted constitutional provision. Cases being decided, and matters being resolved. Only cases are referred to the Court En Banc for decision whenever the required number of votes is not obtained. Matters are not referred anymore. I regret I cannot square with such position. The majority view is that cases would only refer to deliberations at first instance on the merits of a case filed with the Court, and other deliberations, such as motions, including motions for reconsideration, are matters to be resolved. To give flesh to this distinction, it is cited that if a tie occurs in the voting on deliberations of cases, no decision is passed, whereas, if a tie occurs in the voting on motions for reconsideration, the decision which had already been passed stands. xxx xxx

SOTTO, VIRGINIA E. VILLONGCO, EDGARDO C. ESPINOSA, LUCIA E. LAPERAL, NORMA C. ESPINOSA, TERESITA E. CASAL, PELTAN DEVELOPMENT, INC., REGIONAL TRIAL COURT (formerly CFI of Rizal) and the REGISTER OF DEEDS OF LAS PIAS, METRO MANILA. respondents. ALEJANDRO B. REY, petitioner-intervenor. [G.R. No. 127245. June 28, 2000] REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR, LAND MANAGEMENT BUREAU, petitioner, vs. HON. COURT OF APPEALS, LORENZO J. GANA, PATROCNIO E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO, EDGARDO C. ESPINOSA, LUCIA A. LAPERAL, NORMA C. ESPINOSA, TERESITA E. CASAL, PELTAN DEVELOPMENT INC., THE REGIONAL TRIAL COURT (formerly CFI) of RIZAL, and THE REGISTER OF DEEDS OF LAS PIAS, respondents. RESOLUTION PURISIMA, J.: This resolves petitioners Motions to Refer to the Court En Banc these consolidated cases, which the Third Division decided on September 2, 1999. The motions for reconsideration seasonably filed by the petitioners, Republic of the Philippines and Firestone Ceramics, Inc., et al., are pending. Under Supreme Court Circular No. 2-89, dated February 7, 1989, as amended by the Resolution of November 18, 1993: xxx, the following are considered en banc cases: 1.....Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; 2.....Criminal cases in which the appealed decision imposes the death penalty; 3.....Cases raising novel questions of law; 4.....Cases affecting ambassadors, other public ministers and consuls; 5.....Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission on Elections, and Commission on Audit; 6.....Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000.00 or both; 7.....Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed;

8.....Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court en banc and are acceptable to a majority of the actual membership of the court en banc; and 9.....All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention. The cases at bar involve a vast tract of land with an area of around ninety-nine (99) hectares presumptively belonging to the Republic of the Philippines, which land had been adjudicated to private individuals by a court alleged to be without jurisdiction. Since the validity of the said decision and the original certificate of title as well as transfer certificates of title issued pursuant thereto hinges on the classification of subject area at the time it was so adjudicated, determination of the validity of the disposition thereof is in order. The assailed decision does not indicate the classification of the land in question, when the herein private respondents obtained their decree of registration thereover. In Limketkai Sons Milling, Inc. vs. Court of Appeals, the Court conceded that it is not infallible. Should any error of judgment be perceived, it does not blindly adhere to such error, and the parties adversely affected thereby are not precluded from seeking relief therefrom, by way of a motion for reconsideration. In this jurisdiction, rectification of an error, more than anything else, is of paramount importance. Here, there was submitted to the Court en consulta, petitioners Motions to Refer to the Court En Banc these consolidated cases for the consideration of the Court. A pleading, entitled "FOR THE CONSIDERATION OF THE COURT EN BANC, EN CONSULTA," was presented but when the same was first brought to its attention on March 7, 2000, the Court opined that since the Third Division had not yet acted on subject motions to refer the cases to the Banc, it was then premature for the Court to resolve the consulta. However, the Court succinctly cautioned that the action of the Third Division on the matter would just be tentative. On March 8, 2000, the Third Division voted 4-1 to deny petitioners motion to transfer these cases to the Banc. Thus, on March 14, 2000, the Court deliberated on the consulta and thereafter, voted 95 to accept the cases for the Banc to pass upon in view of the finding that the cases above entitled are of sufficient importance to merit its attention. Evidently, the action of the Court under the premises is a legitimate and valid exercise of its RESIDUAL POWER within the contemplation of paragraph 9 of the Resolution En Banc of November 18, 1993, which reads: "All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention." (underscoring supplied) Untenable is the contention of Justice Panganiban that the Chief Justice and the eight (8) Associate Justices who voted to treat these consolidated cases as En Banc cases, have not given any cogent or compelling reason for such action. Considering that paragraph 9 of the Resolution of this Court dated November 18, 1993, has been cited to support the majority opinion, it is decisively clear that these consolidated cases have been found to be of sufficient importance to merit the attention and disposition of the entire Court en banc and therefore, the prayer of the Republic of the Philippines and the private petitioners for the Court en banc to hear and resolve their pending motions for reconsideration, is meritorious. The aforesaid finding by the Court constitutes a reason cogent and compelling enough to warrant the majority ruling that the Court En Banc has to act upon and decide petitioners motions for reconsideration. It bears stressing that where, as in the present cases, the Court En Banc entertains a case for its resolution and disposition, it does so

without implying that the Division of origin is incapable of rendering objective and fair justice. The action of the Court simply means that the nature of the cases calls for en banc attention and consideration. Neither can it be concluded that the Court has taken undue advantage of sheer voting strength. It was merely guided by the well-studied finding and sustainable opinion of the majority of its actual membership - that, indeed, subject cases are of sufficient importance meriting the action and decision of the whole Court. It is, of course, beyond cavil that all the members of this highest Court of the land are always embued with the noblest of intentions in interpreting and applying the germane provisions of law, jurisprudence, rules and Resolutions of the Court to the end that public interest be duly safeguarded and rule of law be observed. Reliance by Justice Panganiban on the ruling of the Court in the Sumilao case is misplaced. The said case is not on all fours with these cases. In the Sumilao case, before it was brought to the Banc en consulta, the motion for reconsideration of the decision therein rendered had been voted upon by the Second Division with a vote of 2-2. The Court ruled that the stalemate resulting from the said voting constituted a denial of the motion for reconsideration. In the two consolidated cases under consideration, however, the Motions for Reconsideration of the petitioners, Republic of the Philippines and Firestone Ceramics, Inc., et al., are pending and unresolved. Taking into account the importance of these cases and the issues raised, let alone the enormous value of the area in litigation, which is claimed as government property, there is merit in the prayer of petitioners that their pending motions for reconsideration should be resolved by the Court En Banc. WHEREFORE, these consolidated cases are considered and treated as en banc cases; and petitioners motions for reconsideration are hereby set for oral argument on July 18, 2000, at 11:00 a.m. Let corresponding notices issue. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 110068 February 15, 1995 PHILIPPINE DUPLICATORS, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and PHILIPPINE DUPLICATORS EMPLOYEES UNION-TUPAS, respondents. RESOLUTION FELICIANO, J.: On 11 November 1993, this Court, through its Third Division, rendered a decision dismissing the Petition for Certiorari filed by petitioner Philippine Duplicators, Inc. (Duplicators) in G.R. No. 110068. The Court upheld the decision of public respondent National Labor Relations Commission (NLRC), which affirmed the order of Labor Arbiter Felipe T. Garduque II directing petitioner to pay 13th month pay to private respondent employees computed on the basis of their fixed wages plus sales commissions. The Third Division also denied with finality on 15 December 1993 the Motion for Reconsideration filed (on 12 December 1993) by petitioner.

On 17 January 1994, petitioner Duplicators filed (a) a Motion for Leave to Admit Second Motion for Reconsideration and (b) a Second Motion for Reconsideration. This time, petitioner invoked the decision handed down by this Court, through its Second Division, on 10 December 1993 in the two (2) consolidated cases of BoieTakeda Chemicals, Inc. vs. Hon. Dionisio de la Serna and Philippine Fuji Xerox Corp. vs. Hon. Cresenciano B. Trajano, in G.R. Nos. 92174 and 102552, respectively. In its decision, the Second Division inter alia declared null and void the second paragraph of Section 5 (a) 1 of the Revised Guidelines issued by then Secretary of Labor Drilon. Petitioner submits that the decision in the Duplicators case should now be considered as having been abandoned or reversed by the Boie-Takeda decision, considering that the latter went "directly opposite and contrary to" the conclusion reached in the former. Petitioner prays that the decision rendered in Duplicators be set aside and another be entered directing the dismissal of the money claims of private respondent Philippine Duplicators' Employees' Union. In view of the nature of the issues raised, the Third Division of this Court referred the petitioner's Second Motion for Reconsideration, and its Motion for Leave to Admit the Second Motion for Reconsideration, to the Court en banc en consulta. The Court en banc, after preliminary deliberation, and inorder to settle the condition of the relevant case law, accepted G.R. No. 110068 as a banc case. Deliberating upon the arguments contained in petitioner's Second Motion for Reconsideration, as well as its Motion for Leave to Admit the Second Motion for Reconsideration, and after review of the doctrines embodied, respectively, in Duplicators and Boie-Takeda, we consider that these Motions must fail. The decision rendered in Boie-Takeda cannot serve as a precedent under the doctrine of stare decisis. The Boie-Takeda decision was promulgated a month after this Court, (through its Third Division), had rendered the decision in the instant case. Also, the petitioner's (first) Motion for Reconsideration of the decision dated 10 November 1993 had already been denied, with finality, on 15 December 1993, i.e.; before the Boie-Takeda decision became final on 5 January 1994. Preliminarily, we note that petitioner Duplicators did not put in issue the validity of the Revised Guidelines on the Implementary on of the 13th Month Pay Law, issued on November 16, 1987, by then Labor Secretary Franklin M. Drilon, either in its Petition for Certiorari or in its (First) Motion for Reconsideration. In fact, petitioner's counsel relied upon these Guidelines and asserted their validity in opposing the decision rendered by public respondent NLRC. Any attempted change in petitioner's theory, at this late stage of the proceedings, cannot be allowed. More importantly, we do not agree with petitioner that the decision in Boie-Takeda is "directly opposite or contrary to" the decision in the present (Philippine Duplicators). To the contrary, the doctrines enunciated in these two (2) cases in fact co-exist one with the other. The two (2) cases present quite different factual situations (although the same word "commissions" was used or invoked) the legal characterizations of which must accordingly differ. The Third Division in Durplicators found that: In the instant case, there is no question that the sales commission earned by the salesmen who make or close a sale of duplicating machines distributed by petitioner corporation, constitute part of the compensation or remuneration paid to salesmen for serving as salesmen, and hence as part of the "wage" or salary of petitioner's salesmen. Indeed, it appears that petitioner pays its salesmen a small fixed or

guaranteed wage; the greater part of the salesmen's wages or salaries being composed of the sales or incentive commissions earned on actual sales closed by them. No doubt this particular galary structure was intended for the benefit of the petitioner corporation, on the apparent assumption that thereby its salesmen would be moved to greater enterprise and diligence and close more sales in the expectation of increasing their sales commissions. This, however, does not detract from the character of such commissions as part of the salary or wage paid to each of its salesmen for rendering services to petitioner corporation. In other words, the sales commissions received for every duplicating machine sold constituted part of the basic compensation or remuneration of the salesmen of Philippine Duplicators for doing their job. The portion of the salary structure representing commissions simply comprised an automatic increment to the monetary value initially assigned to each unit of work rendered by a salesman. Especially significant here also is the fact that the fixed or guaranteed portion of the wages paid to the Philippine Duplicators' salesmen represented only 15%-30% of an employee's total earnings in a year. We note the following facts on record: Salesmen's Total Earnings and 13th Month Pay For the Year 1986 2 Name of Total Amount Paid Montly Fixed Salesman Earnings as 13th Month Pay Wages x 12 3 Baylon, P76,610.30 Benedicto Bautista Salvador Brito, Tomas Bunagan, Jorge Canilan, Rogelio Dasig, Jeordan 90,780.85 P1,350.00 P16,200.00

Ochosa, Rolano

66,275.65

1,406.00

16,872.00

Quisumbing, 101,065.75 1,406.00 16,872.00 Teofilo Rubina, Emma Salazar, Celso Sopelario, Ludivico 42,209.73 1,266.00 15,192.00

64,643.65

1,238.00

14,856.00

52,622.27

1,350.00

16,200.00

Tan, 30,127.50 Leynard Talampas, Pedro 146,510.25

1,238.00

14,856.00

1,434.00

17,208.00

Villarin, 41,888.10 Constancio Carrasco, Cicero Punzalan, Reynaldo Poblador, Alberto Cruz, Danilo Baltazar, Carlito

1,434.00

17,208.00

50,201.20

403.75*

24,351.89

1,266.00

15,192.00

25,516.75

323.00*

1,182.00

14,184.00

32,950.45

323.00*

64,382.75

1,238.00

14,856.00

15,681.35

323.00*

89,287.75

1,266.00

15,192.00

74,678.17

1,350.00

16,200.00

54,625.16

1,378,00

16,536.00

Considering the above circumstances, the Third Division held, correctly, that the sales commissions were an integral part of the basic salary structure of Philippine Duplicators' employees salesmen. These commissions are not overtime payments, nor profit-sharing payments nor any other fringe benefit. Thus, the salesmen's commissions, comprising a pre-determined percent of the selling price of the goods sold by each salesman, were properly included in the term "basic salary" for purposes of computing their 13th month pay. In Boie-Takeda the so-called commissions "paid to or received by medical representatives of Boie-Takeda Chemicals or by the rank and file employees of Philippine Fuji Xerox Co.," were excluded from the term "basic salary" because these were paid to the medical representatives and rank-and-file employees as "productivity bonuses." 4 The Second Division characterized these payments as additional monetary benefits not properly included in the term "basic salary" in computing their 13th month pay. We note that productivity bonuses are generally tied to the productivity, or capacity for revenue production, of a corporation; such bonuses closely resemble profit-sharing payments and have no clear director necessary relation to the amount of work actually done by each individual employee. More generally, a bonus is an amount granted and paid ex gratia to the employee; its payment constitutes an act of enlightened generosity and self-interest on the part of the employer, rather than as a demandable or enforceable obligation. In Philippine Education Co. Inc. (PECO) v. Court of Industrial Relations, 5 the Court explained the nature of a bonus in the following general terms:

Centeno, 51,854.15 Melecio, Jr.

1,266.04

15,192.00

De los Santos 73,551.39 1,322.00 15,864.00 Ricardo del Mundo, 108,230.35 1,406.00 16,872.00 Wilfredo Garcia, Delfin 93,753.75 1,294.00 15,528.00

Navarro, 98,618.71 Ma. Teresa

1,266.00

15,192.00

As a rule a bonus is an amount granted and paid to an employee for his industry loyalty which contributed to the success of the employer's business and made possible the realization of profits. It is an act of generosity of the employer for which the employee ought to be thankful and grateful. It is also granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of bigger profits . . . . . From the legal point of view a bonus is not and mandable and enforceable obligation. It is so when It is made part of the wage or salary or compensation. In such a case the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profits. . . . 6 (Emphasis supplied) In Atok-Big Wedge Mining Co., Inc. v. Atok-Big Wedge Mutual Benefit Association, 7 the Court amplified: . . . . Whether or not [a] bonus forms part of waqes depends upon the circumstances or conditions for its payment. If it is an additional compensation which the employer promised and agreed to give without any conditions imposed for its payment, such as success of business or greater production or output, then it is part of the wage. But if it is paid only if profits are realized or a certain amount of productivity achieved, it cannot be considered part of wages. . . . It is also paid on the basis of actual or actual work accomplished. If the desired goal of production is not obtained, or the amount of actual work accomplished, the bonus does not accrue. . . . 8 (Emphasis supplied) More recently, the non-demandable character of a bonus was stressed by the Court in Traders Royal Bank v. National Labor Relations Commission: 9 A bonus is a "gratuity or act of liberality of the giver which the recipient has no right to demand as a matter of right ." (Aragon v. Cebu Portland Cement Co., 61 O.G. 4567). " It is something given in addition to what is ordinarily received by or strictly due the recipient ." The granting of a bonus is basically a management prerogative which cannot be forced upon the employer "who may not be obliged to assume the onerous burden of granting bonuses or other benefits aside from the employee's basic salaries or wages . . ." (Kamaya Point Hotel v. NLRC, 177 SCRA 160 [1989]). 10 (Emphasis supplied) If an employer cannot be compelled to pay a productivity bonus to his employees, it should follow that such productivity bonus, when given, should not be deemed to fall within the "basic salary" of employees when the time comes to compute their 13th month pay. It is also important to note that the purported "commissions" paid by the Boie-Takeda Company to its medical representatives could not have been "sales commissions" in the same sense that Philippine Duplicators paid its salesmen Sales commissions. Medical representatives are not salesmen; they do not effect any sale of any article at all. In common commercial practice, in the Philippines and elsewhere, of which we take judicial notice, medical representatives are employees engaged in the promotion of pharmaceutical products or medical devices manufactured by their employer. They promote such products by visiting identified physicians and inform much physicians, orally and with the aid of printed brochures, of the existence and chemical composition and virtues of particular

products of their company. They commonly leave medical samples with each physician visited; but those samples are not "sold" to the physician and the physician is, as a matter of professional ethics, prohibited from selling such samples to their patients. Thus, the additional payments made to Boie-Takeda's medical representatives were not in fact sales commissions but rather partook of the nature of profit-sharing bonuses. The doctrine set out in the decision of the Second Division is, accordingly, that additional payments made to employees, to the extent they partake of the nature of profit-sharing payments , are properly excluded from the ambit of the term "basic salary" for purposes of computing the 13th month pay due to employees. Such additional payments are not "commissions" within the meaning of the second paragraph of Section 5 (a) of the Revised Guidelines Implementing 13th Month Pay. The Supplementary Rules and Regulations Implementing P.D. No. 851 subsequently issued by former Labor Minister Ople sought to clarify the scope of items excluded in the computation of the 13th month pay; viz.: Sec. 4. Overtime pay, earnings and other remunerations which are not part of the basic salary shall not be included in the computation of the 13th month pay. We observe that the third item excluded from the term "basic salary" is cast in open ended and apparently circular terms: "other remunerations which are not part of the basic salary." However, what particular types of earnings and remuneration are or are not properly included or integrated in the basic salary are questions to be resolved on a case to case basis, in the light of the specific and detailed facts of each case. In principle, where these earnings and remuneration are closely akin to fringe benefits, overtime pay or profit-sharing payments, they are properly excluded in computing the 13th month pay. However, sales commissions which are effectively an integral portion of the basic salary structure of an employee, shall be included in determining his 13th month pay. We recognize that both productivity bonuses and sales commissions may have an incentive effect. But there is reason to distinguish one from the other here. Productivity bonuses are generally tied to the productivity or profit generation of the employer corporation. Productivity bonuses are not directly dependent on the extent an individual employee exerts himself. A productivity bonus is something extra for which no specific additional services are rendered by any particular employee and hence not legally demandable, absent a contractual undertaking to pay it. Sales commissions, on the other hand, such as those paid in Duplicators, are intimately related to or directly proportional to the extent or energy of an employee's endeavors. Commissions are paid upon the specific results achieved by a salesman-employee. It is a percentage of the sales closed by a salesman and operates as an integral part of such salesman's basic pay. Finally, the statement of the Second Division in Boie-Takeda declaring null and void the second paragraph of Section 5(a) of the Revised Guidelines Implementing the 13th Month Pay issued by former Labor Secretary Drilon, is properly understood as holding that that second paragraph provides no legal basis for including within the term "commission" there used additional payments to employees which are, as a matter of fact, in the nature of profitsharing payments or bonuses. If and to the extent that such second paragraph is so interpreted and applied, it must be regarded as invalid as having been issued in excess of the statutory authority of the Secretary of Labor. That same second paragraph however, correctly recognizes that commissions, like those paid in Duplicators, may constitute part of the basic salary structure of salesmen and hence should be included in determining the 13th month pay; to this extent, the second paragraph is and remains valid.

ACCORDINGLY, the Motions for (a) Leave to File a Second Motion for Reconsideration and the (b) aforesaid Second Reconsideration are DENIED for lack of merit. No further pleadings will be entertained. Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. EN BANC [G.R. No. 123780. September 24, 2002] In Re: Petition Seeking for Clarification as to the Validity and Forceful Effect of Two (2) Final and Executory but Conflicting Decisions of the Honorable Supreme Court. Group Commander, Intelligence and Security Group, Philippine Army, represented by Colonel PEDRO R. CABUAY, JR., petitioner, vs. DR. POTENCIANO MALVAR and MARCELINO LOPEZ, respondents. HEIRS OF ELINO ADIA, represented by JULIANA ADIA, intervenors. DECISION SANDOVAL-GUTIERREZ, J.: Every litigation must come to an end once a judgment becomes final, executory and unappealable. This is a fundamental and immutable legal principle. For (j)ust as a losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case by the execution and satisfaction of the judgment, which is the life of the law. Any attempt to thwart this rigid rule and deny the prevailing litigant his right to savour the fruit of his victory, must immediately be struck down. For resolution is the motion for reconsideration filed by Dr. Potenciano Malvar and Marcelino Lopez, respondents, of the Decision of this Court in the instant case clarifying that the ruling of the Third Division of this Court in G.R. No. 110900 prevails over the Decision rendered by the First Division in G.R. No. 90380. The heirs of Hermogenes Lopez, the heirs of Elino Adia, Ambrosio Aguilar and Eduardo V. Santos were engaged in a legal tug-of-war over the ownership of a parcel of land located in Barrio De la Paz, Antipolo City with an area of 19 hectares, 48 ares and 88 centares more or less, described and delineated in Plan H-138612. I Records show that as early as 1920, Fermin Lopez was in possession of the land. He had it declared in his name for taxation purposes and in 1928, filed a homestead application therefor. After his death in 1943, his son Hermogenes Lopez continued occupying and cultivating the land. In the early part of 1936, Hermogenes inquired from the Bureau of Lands about the status of his late fathers homestead application. He learned that it was not acted upon. He then filed his homestead application over the same land, docketed as Homestead Application No. 138612. After he had shown full compliance with the requirements of the Public Land Act, the Director of Lands, on February 7, 1939, approved Plan No. H-138612 in the name of Hermogenes Lopez. Thereafter, the Director of Lands ordered the issuance of the corresponding patent to him . Hermogenes continued to occupy the land as its recognized owner until he transferred his rights thereto in favor of Ambrosio Aguilar through a deed of sale executed on July 31, 1959.

Records also show that on August 24, 1944, the land was registered in the name of Fernando Gorospe under Original Certificate of Title (OCT) No. 537, pursuant to Free Patent No. 54072 based on the same Homestead Application No. 138612 (of Hermogenes Lopez) but in Gorospes name. Gorospe, in turn, sold the land to spouses Salvador and Rosario de Tagle. Thus, OCT No. 537 was cancelled and, in lieu thereof, Transfer Certificate of Title (TCT) No. 46580 was issued in their names on August 17, 1944. On December 9, 1947, spouses Tagle sold the land to Antonio de Zuzuarregui, Sr., who was then issued TCT No. 7375 after TCT No. 46580 was cancelled. Upon Zuzuarreguis death, the property was adjudicated to his widow, Beatriz de Zuzuarregui, who, on December 17, 1959, obtained TCT No. 72438 upon cancellation of TCT No. 7375. On December 16, 1959, the widow sold the land to Eduardo Santos. Thus, TCT No. 72438 was cancelled and in lieu thereof, TCT No. 72439 was issued in his name. Since no certificate of title was yet issued to Hermogenes Lopez, on July 16, 1959, he filed with the then Court of First Instance (CFI) of Rizal an application for registration of the land, docketed as General Land Registration Commission Records No. 2531. This was opposed by Beatriz de Zuzuarregui and Eduardo Santos, claiming that the land was already registered under TCT No. 7375 in the name of Antonio de Zuzuarregui, Sr.. Thus, the proceedings were suspended. On December 21, 1959, Hermogenes Lopez filed with the CFI of Rizal a complaint for annulment of OCT 537 and all TCTs derived therefrom against Fernando Gorospe, spouses Tagle, Beatriz de Zuzuarregui and Eduardo Santos. The case was docketed as Civil Case No. 5957. However, the CFI dismissed the complaint on the ground that Hermogenes Lopez was not the real party-in-interest since he had sold the property to Ambrosio Aguilar in December of 1959. This prompted Ambrosio Aguilar to file with the same CFI a similar action against the same defendants, including the Director of Lands, docketed as Civil Case No. 24873 . On April 15, 1981, the court rendered judgment in favor of Ambrosio Aguilar, declaring him the true and lawful owner of the land in question and nullifying, for being void ab initio, OCT No. 537 in the name of Fernando Gorospe and all subsequent Transfer Certificates of Title emanating therefrom. On appeal, docketed as CA-G.R. CV No. 07475, the Court of Appeals, affirmed in toto the trial courts judgment and subsequently denied the motion for reconsideration. Eduardo Santos then filed a petition for review on certiorari with this Court, docketed as G.R. No. 90380. In a Decision dated September 13, 1990, this Court (First Division) denied the petition and affirmed the Court of Appeals Decision. Speaking through Justice Emilio A. Gancayco, with Chief Justice Andres R. Narvasa, Jutices Isagani A. Cruz, Carolina C. Grio-Aquino and Leo D. Medialdea, concurring, this Court ruled that Ambrosio Aguilar, successor-in-interest of Hermogenes Lopez, is the lawful owner of the property and that with respect to Eduardo Santos, successor-in-interest of Fernando Gorospe, the land in dispute was not brought within the operation of the Land Registration Act, thus: 1. Records do not indicate that Fernando Gorospe (Eduardo Santos predecessor-in-interest) filed any application for the parcel of land in question. No evidence was submitted to prove that the registration in Gorospes name was made pursuant to a satisfactory showing of his compliance with the requirements for homestead application under the Public Land Act, i.e., that Gorospe took possession and began to work on the property, introduced improvements thereon, and cultivated the same, etc.. 2. Formidable pieces of evidence were presented to support the claim of ownership of Hermogenes Lopez, Ambrosio Aguilars predecessor-ininterest, over the property, to wit: (a) the original tracing cloth of Plan H-138612 (Exhibit A-3) which was surveyed for Hermogenes Lopez; (b) the Microfilm of Plan H-138612 bearing the corresponding Accession No. 103378 (Exhibit D-1); (c) the Whiteprint of Plan H-138612, also bearing the same Accession No. 103378 (Exhibit D); (d) the Inventory Book prepared in the year 1951 by the Bureau of Lands (Exhibit XX)

containing a list of salvaged plans, among which was Plan H-138612 as surveyed for Hermogenes Lopez; (e) the Index Card of the Bureau of Lands (Exhibit XX-2) showing that Plan H-138612 is one of the salvaged plans and that the same is in the name of Hermogenes Lopez; (f) the consolidated Plan AP-6450 (Exhibit X) prepared by the Bureau of Lands which shows that Hermogenes Lopez is the owner of the parcel of land covered by Plan H-138612; (g) Plans H-147383, Psu-146727 and F 1543 showing the boundary of the land owned by Hermogenes Lopez; and (h) testimonies of persons in the Bureau of Lands which proved that Hermogenes Lopez filed a homestead application bearing No. H-138612 covering the property and that the same was duly processed by the Bureau after he had complied with all the requirements of the law. 3. Contrary to Eduardo Santos claim, he cannot be considered an innocent purchaser in good faith and for value. He made admissions indicating previous knowledge of the status of the property. Neither he nor his predecessor-in-interest, Fernando Gorospe, had been in possession of the property. He also admitted his prior conviction for illegal construction for fencing the property and constructing a hut thereon. Most telling was his opposition to the application for registration of Hermogenes Lopez in General Land Registration Commission Records No. 2531 filed with the then CFI of Rizal on July 16, 1959. In other words, Eduardo Santos already knew of the existence of Hermogenes claim on the property and yet, he persisted in acquiring the same. 4. As an applicant-possessor who complied with all the necessary requirements for the grant by the Government under the Public Land Act through actual, open, continuous and public possession, Hermogenes Lopez, predecessor-in-interest of Ambrosio Aguilar, is deemed to have already acquired by operation of law, not only a right to a grant, but the grant itself by the government for it is not necessary that a certificate of title be issued to Hermogenes in order that said grant may be sanctioned by the courts - an application therefor being sufficient under the law. 5. There were some irregularities in the issuance of OCT No. 537 in Fernando Gorospes name, to wit: (a) although it appears on the very face of OCT No. 537 that it was issued because of Homestead Plan H-138612, approved in the name of Hermogenes Lopez, the form used for OCT No. 537 is for a free patent and not for a homestead patent; and (b) OCT No. 537 was issued on August 24, 1944, while TCT No. 46580 derived therefrom, in the names of spouses Tagle who bought the property from Fernando Gorospe, appears to have been issued ahead, or on August 17, 1944, which means that OCT No. 537 was cancelled even before it was issued. The above Decision in G.R. No. 90380 (rendered by the First Division) became final and executory on November 29, 1990. III It appears that the heirs of the late Elino Adia began pursuing their adverse claim of ownership over the same property only in the early part of the 1980s. In 1983, the Adia heirs filed protests with the Bureau of Lands, now known as Lands Management Bureau (LMB), questioning the authenticity of the approved homestead patent of Hermogenes Lopez. The then Regional Director Rodolfo A. Paelmo dismissed the protests, prompting the Adia heirs to charge him before the Tanodbayan with grave misconduct, abuse of discretion and violation of Republic Act No. 3019. On February 14, 1983, these charges were dismissed by the Tanodbayan. For their part, the Lopez heirs, on July 16, 1984, filed with the Regional Trial Court (RTC), Branch 71, Antipolo City, a complaint for cancellation of the 1959 deed of sale executed between their predecessor-in-interest, Hermogenes Lopez, and Ambrosio Aguilar over the property, docketed as Civil Case No. 463-A. The Lopez heirs alleged that the sale was made by Hermogenes Lopez who was unsufficiently educated. After hearing, the trial court rendered its decision (a) declaring void ab initio the 1959 Lopez-Aguilar deed of sale, (b) decreeing the Lopez heirs as the true

and Absolute owners of the said parcel of land, and (c) restoring to the Lopez heirs possession thereof. The trial court found that Hermogenes sold the land to Aguilar before the issuance of the corresponding homestead patent or title in his name. Ambrosio Aguilar interposed an appeal to the Court of Appeals, docketed as CA G.R. CV No. 06242. During the pendency of this appeal, the Appellate Court issued an order of execution pending appeal in favor of the Lopez heirs. On August 18, 1987, the Court of Appeals affirmed the RTC assailed decision. On March 28, 1985, the Adia heirs filed with the same RTC a separate action for partial quashal of the writ of execution with application for preliminary injunction, docketed as Civil Case No. 613-A, against the Lopez heirs. When the trial court did not take any action on their application for a writ of preliminary injunction, the Adia heirs filed a petition for certiorari with the Court of Appeals, docketed as AC-G.R. SP No. 05942. In a Decision dated July 15, 1985, the Court of Appeals dismissed the petition, holding that: 3. More importantly, the filing of the instant petition appears to be a lastditched effort on petitioners (Adia) part to prevent execution of two judgments confirming the validity of the ownership of private respondents, through their predecessors-in-interest. The due approval of the homestead application of Hermogenes Lopez in 1939 (in reiteration of the application of his father Fermin) was confirmed in Civil Case No. 24873. Later, the alleged sale of the property by the uneducated Hermogenes to the Aguilars was set aside in Civil Case No. 463-A. In fine, it is now beyond dispute that private respondents (Heirs of Lopez) are the judicially acknowledged and recognized owners of the property. But this is not all. The authenticity of the title based on the homestead application of Hermogenes Lopez was the subject of protests filed by herein petitioners with the Bureau of Lands. These protests were, however, dismissed by Regional Director Rodolfo A. Paelmo, and for such action the poor Director was even charged by petitioners before the Tanodbayan for grave misconduct, abuse of discretion and violation of Republic Act No. 3019. The complaint was dismissed on February 14, 1983 with the Tanodbayan observing that the action of Director Paelmo was in consonance with the decision in Civil Case No. 25875 wherein Ambrosio Aguilar was declared the owner of the property on the basis of the approved application and decree in favor of Hermogenes Lopez, and also in view of the documents presented by Director Paelmo consisting of the approved plan in the name of Hermogenes Lopez. On July 8, 1985, the Adia heirs filed another protest with the LMB, docketed as B.L. Claim 653, assailing Plan H-138612 issued to Hermogenes Lopez and praying that the property be titled in their names. On December 10, 1990, then LMB Director Abelardo Palad rendered a decision in B.L. Claim 653 totally at variance with and virtually disregarding the final Decision of this Court in G.R. No. 90380. Director Palad dismissed the claim of Hermogenes Lopez and those claiming rights under him, and ordered the reconstitution of the homestead application of Elino Adia, or in lieu thereof, the filing of a new application by his heirs, thus:

WHEREFORE, Plan H-138612 appearing in the records of this Office in the name of the heirs of Hermogenes Lopez is hereby as it is, corrected and amended, in that it shall thereafter be considered to be recorded in the name of Elino Adia, now his heirs, represented by Emiliano and Juliana Adia. The claims of Hermogenes Lopez and all those claiming under him, Francisco R. Cruz and the Overlooking Storeowners and Planters Association, Inc. are hereby dismissed and this case dropped from the records. The homestead application of Elino Adia, covering plan H-138612 shall be reconstituted or in lieu thereof, a new application may be filed by the Heirs of Elino Adia, which shall thereafter be given due course. Within the period of sixty (60) days from receipt of this order, the O.S. & P.A. shall vacate and remove whatever improvements they have in the premises. On January 23, 1991, the Lopez heirs filed an urgent motion for reconsideration of the LMB decision, contending that the LMB has no more jurisdiction to entertain, investigate and decide questions of ownership over the property considering this Courts Decision in G.R. No. 90380 declaring Hermogenes Lopez and his heirs the lawful owners of the land. Meanwhile, on February 8, 1991, the Register of Deeds of Marikina City, pursuant to the Decision of this Court (First Division) in G.R. No. 90380, issued TCT No. 196256 in favor of the Lopez heirs. The following annotation appears at the back of said title: Entry No. 252049/T. No. 196256 ORDER by virtue of an order issued by the Regional Trial Court of Antipolo, Rizal, Branch 71 in Civil Case No. 463-A, the 2nd par. On the face of this certificate of title has been cancelled and superseded in view of the nullification of Original Certificate of Title No. 537 and all titles emanating therefrom up to Transfer Certificate of Title No. 117266. This certificate of title is hereby amended as Issued by virtue of the Decision of the Supreme Court in G.R. No. 90380 on September 13, 1990 (in relation to the Decision in Civil Case No. 463-A as affirmed by the Court of Appeals in CA-G.R. C.V. No. 06242 and the Supreme Court in G.R. No. 81092) which declared that Hermogenes Lopez, now his heirs, as the true and rightful owner by virtue of Homestead Patent Application No. 138612 and the corresponding homestead patent issued in his favor in June 1939, after complying with the requirements of Commonwealth Act No. 141, as amended, otherwise known as the Public Land Act. (Emphasis supplied) Going back to the Adia heirs protest before the LMB, it appears that on January 29, 1992, then LMB Director Palad denied the Lopez heirss urgent motion for reconsideration of the LMBs decision in favor of the Adia heirs. Forthwith, the Lopez heirs filed a petition for certiorari with the Court of Appeals (docketed as CA-G.R. SP No. 27602) assailing the LMBs decision and the order denying their motion for reconsideration. Surprisingly, on February 26, 1993, the Court of Appeals, in CA-G.R. SP No. 27602, rendered judgment denying the petition of the Lopez heirs and affirming the LMBs decision. It held that this Courts Decision in G.R. No. 90380 did not bind the government, thus: 1. Other than the Lopez heirs claim that they are the heirs of Hermogenes Lopez, there is no concrete evidence that the property ceased to become part of the public domain; 2. The Supreme Court Decision in G.R. No. 90380 did not bind the government, particularly the LMB, since the latter agency was not impleaded as a party in Civil Case No. 2473 (Ambrosio Aguilar vs. Fernando Gorospe, et al.) for annulment of OCT No. 537 and all titles emanating therefrom, which case eventually reached the Supreme Court as G.R. No. 90380; 3. The principle of res judicata is inapplicable; and 4. The Lopez heirs failed to exhaust all administrative remedies.

From this adverse judgment, the Lopez heirs filed a petition for review on certiorari with this Court, docketed as G.R. No. 110900. The Third Division of this Court, in a Resolution dated August 11, 1993, denied the petition on two (2) grounds: (a) petitioners failed to attach to the petition a duplicate original or certified true copy of the assailed Court of Appeals Decision, as required by this Courts Revised Circular 1-88 (which took effect on July 1, 1991); and (b) even if there was no violation of the Circular, no reversible error was committed by the appellate court. In effect, this Court (Third Division) recognized the Adia heirs claim over the land as valid and, therefore, dismissed the claim of the Lopez heirs. By this ruling, the Third Division reversed and set aside the previous Decision of the First Division in G. R. No. 90380 declaring Hermogenes Lopez and his heirs the lawful owners of the land. Thus, on December 27, 1994, the OIC of the Provincial Environment and Natural Resources Officer of Antipolo City issued eight (8) free patents, in the names of all the Adia heirs. On January 26, 1995, the Register of Deeds of Marikina City issued the corresponding eight (8) Original Certificates of Title, also in their names. IV On October 6, 1995, the Lopez heirs, joined by Dr. Potenciano Malvar, who, on April 20, 1995, bought a portion of the land from the former, filed with the trial court (RTC, Branch 71, Antipolo City) a motion for the issuance of an alias writ of execution of the decision in Civil Case No. 463A pursuant to the Decision of this Court in G. R. No. 90380 in favor of the Lopez heirs. It must be remembered that in Civil Case No. 463-A, the said trial court annulled the 1959 sale between Hermogenes Lopez and Ambrosio Aguilar and restored to the Lopez heirs possession of the property. On December 11, 1995, the RTC granted the motion and issued a writ of execution which would call for the demolition of the communication facilities and other structures belonging to the Intelligence and Security Group (ISG) of the Philippine Army which also purchased a portion of the property from the Adia heirs. This prompted Col. Pedro R. Cabuay, Jr., Group Commander of the ISG, to file with this Court on February 27, 1996 the present Petition Seeking for Clarification as to the Validity and Forceful Effect of Two (2) Final and Exceutory but Conflicting Decisions (in G.R. No. 90380 and G.R. 110900) of the Honorable Supreme Court. The petition was assigned to the Third Division of this Court. In a Resolution dated January 20, 1997, the Third Division dismissed Col. Cabuay, Jr.s Petition for Clarification as it does not raise any justiciable issue. Forthwith, Col. Pedro R. Cabuay, Jr. and the Adia heirs (intervenors) filed separate motions for reconsideration. The case remained dormant for over two (2) years. On June 9, 1999, acting upon the said motions, the Third Division issued a Resolution treating the Petition for Clarification as a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. The issue raised, therefore, is whether or not the Court of Appeals acted with grave abuse of discretion in affirming the LMB decision in B.L. Claim 653 and disregarding the Decision of this Court (First Division) in G.R. No. 90380. Six (6) months after, or on December 17, 1999, the Third Division rendered the instant Decision holding, in effect, that the Court of Appeals did not act with grave abuse of discretion; and clarifying that the Resolution of this Court in G.R. No. 110900 issued by the Third Division prevails over the Decision in G.R. No. 90380 rendered by the First Division and declaring that the Adia heirs titles are valid, while those of the Lopez heirs are void. The dispositive portion of the instant Decision reads: WHEREFORE, 1. The validity of Original Certificates of Title Nos. P-819, P-820, P-821, P-822, P-823, P-824, P-825 and P-826, registered in the name of Heirs of Elino Adia, represented by Juliana Adia, is UPHELD;

2. All certificates of title issued to the Heirs of Hermogenes Lopez and successors-in-interest, and all titles originating from any of the certificates of title so issued to the Heirs of Hermogenes Lopez, including Transfer Certificates of Title Nos. 207990, 207991, 207992, 207993, 207994, 207995, 207996, 207997, 207998, 207999, 208000, 208001, 208002, 208358, over subject tract of land, as well as TCT No. 216876 issued to Primex Corporation, and any other title derived therefrom are declared null and void; 3. The Heirs of Hermogenes Lopez and all persons claiming any right under them, including but not limited to Primex Corporation, and Dr. Potenciano Malvar, as well as all members of the Overlooking Storeowners and Planters Association, Inc., their assignees and successors-in-interest, are ordered to remove all their improvements on the areas covered by the Original Certificates of Title Nos. P-819 to P-826 aforementioned and to surrender possession thereof to the Heirs of Elino Adia, represented by Juliana Adia; and 4. The writ of demolition, issued by Branch 71 of the Regional Trial Court, Antipolo City, in Civil Case No. 463-A, is SET ASIDE. No pronouncement as to costs. SO ORDERED. The above Decision was penned by Justice Fidel P. Purisima. Thereupon, Dr. Potenciano Malvar and Marcelino Lopez seasonably filed a Motion for Reconsideration with Alternative Prayer for Referral to the Court En Banc. The Adia heirs filed an opposition to the motion for reconsideration. On August 15, 2000, the Court En Banc resolved to accept the present case which was referred to it en consulta by the Third Division. On May 24, 2001, the Office of the Solicitor General (OSG) filed its comment on the motion for reconsideration. The OSG submits that the right of the Lopezes over the land in question is superior to that of the Adias. V Considering the conflicting rulings rendered by the First and Third Divisions, the Court En Banc, therefore, has to break the impasse and must now resolve, once and for all, this basic issue: As between the Lopez heirs and the Adia heirs, who lawfully own the subject property? THE EN BANC RULING The weight of evidence and jurisprudence shows that the Lopez heirs are the lawful owners of the land in controversy. To recall, G.R. No. 90380 rendered by the First Division, through Justice Emilio A. Gancayco, recognizes the right of ownership of Hermogenes Lopez (predecessor-in-interest of the Lopez heirs) over the property by reason of his continuous possession since 1920 and his full compliance with the requirements by the Public Land Act for the issuance of a homestead patent. Upon the other hand, G.R. No. 110900 of the Third Division affirmed, in a Resolution, the Court of Appeals Decision in CAG.R. SP No. 27602 sustaining the LMB decision in B.L. CLAIM 653 dismissing Hermogenes Lopez claim over the property and ordering the reconstitution of the homestead application of the Adia heirs predecessorin-interest, Elino Adia, or in lieu thereof, the filing of a new application by the heirs of Elino Adia. In justifying the adjudication of the property to the Adia heirs, the Court of Appeals held:

Now, while it is true that Hermogenes Lopez had filed an application for a Homestead Patent over the subject land, and his application was determined as superior to the claims of other persons by the courts, such determination in the cases that finally reached the Supreme Court did not bind the government, particularly the Lands Management Bureau. The cases cited by petitioners as having declared the subject land as private property because the homestead patent thereon was confirmed by the Supreme Court did not bind the LMB for two reasons: (1) it was not, and was not impleaded as, a party to said cases, and (2) the cases were in personam in nature, in which while the subject thereof was a right over a piece of land, the controversy was in essence between different persons asserting conflicting claims. The subject property being part of the public domain is within the exclusive jurisdiction of the Lands Management Bureau. It is not only mandated by the Public Land Act but the Supreme Court itself has decreed it to be so x x x. (Emphasis supplied) Verily, the reason why the Court of Appeals set aside the claim of the Lopez heirs is because they did not implead the Director of Lands in their case challenging the validity of the Adia heirs titles. It appears from the very caption of the complaint in Civil Case No. 24873 the case that reached this Court as G.R. No. 90380 that the Director of Lands was impleaded as co-defendant by plaintiff Ambrosio Aguilar (successor-in-interest of Hermogenes Lopez) who sought the nullification of OCT No. 537 in the name of Fernando Gorospe (the Adia heirs predecessor-in-interest) and all TCTs emanating therefrom. The Director of Lands even filed his ANSWER through his Counsel and Special Attorney, Irineo C. Alday. In fact, the decision of the trial court in the same Civil Case No. 24873 also mentioned that the Director of Lands filed his ANSWER. The participation of the Director of Lands in Civil Case No. 24873 having been incontrovertibly established, the Government and the Adia heirs are bound by the decision therein. We reiterate that this decision was affirmed by the Court of Appeals in CA-G.R. CV No. 07475 and by this Court in G.R. No. 90380, holding that Hermogenes Lopez complied with the requirements of the Public Land Act. Having been issued the corresponding Homestead Patent, he is recognized as the owner of the land, thus: In the early part of 1936, Hermogenes Lopez went to the Bureau of Lands and inquired about his fathers homestead application. He was informed that said application was still unacted upon and was advised to apply in his own name. He complied and his application was docketed as homestead application No. 138612. Subsequently, he was able to prove compliance with the requirements of the Public Land Act and, as a matter of course, the land was surveyed by a government surveyor and on 7 February 1939 the resulting plan H-138612 was approved by the Director of Lands . The latter thereafter ordered the issuance of the corresponding patent in the name of Hermogenes Lopez (page 33, Rollo). He has been in actual and continuous possession thereof and was recognized as its owner until he transferred his rights to Ambrosio Aguilar, private respondent herein, on 31 July 1959. (Emphasis supplied) With the ruling of this Court in G.R. No. 90380 that Hermogenes Lopez is the lawful owner, LMB Director Abelardo Palad should have refrained from adjudicating the property to the Adia heirs since it ceased to be of the public domain and beyond his authority to dispose of. To be more precise, the property became the private property of Hermogenes Lopez as early as 1950, or after the lapse of 30 years of continued possession by Hermogenes and his father Fermin Lopez that began in 1920. This is so because jurisprudence consistently declares that the mere lapse of the statutory period of 30 years of open, continuous and exclusive possession of disposable public land automatically transforms the same into private property and vests title on the possessor. Thus: x x x [U]nder the provisions of Republic Act No. 1942, which the respondent court held to be inapplicable to the petitioners case, with the

latters proven occupation and cultivation for more than 30 years since 1914, by himself and by his predecessors-in-interest, title over the land has vested on petitioner so as to segregate the land from the mass of public land. Thereafter, it is no longer disposable under the Public Land Act as by free patent. x x x. As interpreted in several cases (Susi vs. Razon, et al., 48 Phil. 424 [1925]; Mesina vs. Pineda Vda. De Sonza, G.R. No. L-14722, [May 25, 1960]), when the conditions as specified in the foregoing provision are complied with, the possessor is deemed to have acquired, by operation of law, a right to a grant, a government grant, without the necessity of a certificate of title being issued. The land, therefore, ceased to be of the public domain and beyond the authority of the Director of Lands to dispose of. The application for confirmation is a mere formality, the lack of which does not affect the legal sufficiency of the title as would be evidenced by the patent and the Torrens title to be issued upon the strength of said patent. Nothing can more clearly demonstrate the logical inevitability of considering possession of public land which is of the character and duration prescribed by statute as the equivalent of an express grant from the State than the dictum of the statute itself (Section 48 [b] of the Public Land Act) that the possessor(s) x x x shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title x x x. No proof being admissible to overcome a conclusive presumption, confirmation proceedings would, in truth be little more than a formality, at the most limited to ascertaining whether the possession claimed is of the required character and length of time; and registration thereunder would not confer title, but simply recognize a title already vested. The proceedings would not originally convert the land from public to private land, but only to confirm such a conversion already affected by operation of law from the moment the required period of possession became complete. x x x [A]lienable public land by a possessor, personally or through his predecessor-in-interest, openly, continuously and exclusively for the prescribed period (30 years under the Public Land Act, as amended) is converted to private property by the mere lapse or completion of said period, ipso jure. In the Acme decision, this Court upheld the doctrine that open, exclusive and undisputed possession of alienable public land for the period prescribed by law creates the legal fiction whereby the land, upon completion of the requisite period ipso jure and without need of judicial or other sanction, ceases to be public land and becomes private property. [O]pen, continuous and exclusive possession for at least 30 years of alienable public land ipso jure converts the same to private property (Director of Lands vs. IAC, 214 SCRA 604 [1992]). This means that occupation and cultivation for more than 30 years by an applicant and his predecessors-in-interest, vest title on such applicant so as to segregate the land from the mass of public land (NPC vs. Court of Appeals, 218 SCRA 41 [1993]). To be sure, the LMB, beginning 1950, no longer had the authority to dispose of the area in favor of the Adia heirs. The same had been segregated from the mass of public land in that year and converted to Hermogenes Lopez private property over which the government had lost jurisdiction. We advert to a few more pertinent pronouncements by this Court, thus: Under the provisions of Act No. 2874 pursuant to which the title of private respondents predecessor-in-interest was issued, the President of the Philippines or his alter ego, the Director of Lands, has no authority to grant a free patent for land that has ceased to be a public land and has passed to private ownership, and a title so issued is null and void. The nullity arises, not from fraud or deceit, but from the fact that the land is not under the jurisdiction of the Bureau of Lands. The jurisdiction of the Director of Lands is limited only to public lands and does not cover lands privately owned. The purpose of the Legislature in adopting the former Public Land

Act, Act No. 2874, was and is to limit its application to lands of the public domain, and lands held in private ownership are not included therein and are not affected in any manner whatsoever thereby. Land held in freehold or free title, or of private ownership, constitutes no part of the public domain and cannot possibly come within the purview of said Act No.2874, inasmuch as the subject of such freehold or private land is not embraced in any manner in the title of the Act and the same are excluded from the provisions or text thereof. Following the Susi doctrine (48 Phil. 424), therefore, private respondents are deemed to have acquired, by operation of law, not only a right to grant, but also a grant of the Government over the controversial land. By such grant, the property in litigation is segregated from the public domain; and becomes private property, over which necessarily, the Director of Lands no longer has jurisdiction. xxx xxx x x x.

Private ownership of land (as when there is prima facie proof of ownership like a duly registered possessory information) is not affected by the issuance of a free patent over the same land, because the Public Land Act applies only to lands of the public domain. The Director of Lands has no authority to grant to another a free patent for land that has ceased to be a public land and has passed to private ownership. Another reason why the Lopez heirs claim of ownership must be upheld is the applicability of the law of the case doctrine. We explained this doctrine as follows: It need not be stated that the Supreme Court, being the court of last resort, is the final arbiter of all legal questions properly brought before it and that its decision in any given case constitutes the law of that particular case. Once its judgment becomes final it is binding on all inferior courts, and hence beyond their power and authority to alter or modify. x x x x x x x x x

Reasons of public policy, judicial orderliness, economy and judicial time and the interests of litigants, as well as the peace and order of society, all require that stability be accorded the solemn and final judgments of the courts or tribunals of competent jurisdiction. There can be no question that such reasons apply with greater force on final judgments of the highest Court of the land. We stress that the Decision of this Court (First Division) in G.R. No. 90380 is the law of the case binding upon the LMB and the Court of Appeals and is beyond their authority to reverse. We, therefore, rule that the Court of Appeals gravely abused its discretion in affirming the LMB decision in B.L. Claim 653 and ignoring the Decision of this Court in G.R. No. 90380. The Third Division of this Court was misled, so to speak, in resolving in G.R. 110900 that no reversible error was committed by the Appellate Court. Section 4, sub-paragraph (3), Article VIII of the 1987 Constitution, provides: x x x no doctrine or principle of law laid down by the (Supreme) Court en banc or its Divisions may be modified or reversed except by the Court sitting en banc. A Decision rendered by a Division of this Court in violation of the above constitutional provision would be in excess of jurisdiction and, therefore, invalid. WHEREFORE, the motion for reconsideration is hereby GRANTED and the instant Decision is RECONSIDERED. The Resolution dated August

11, 1993 of the Third Division in G.R. No. 110900 upholding the validity of the land titles in the names of the Adia heirs is SET ASIDE. The Decision dated September 13, 1990 of the First Division in G.R. No. 90380 declaring the LOPEZ HEIRS the lawful owners of the land in question is REINSTATED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 116049 July 13, 1995 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. EUSTAQUIO Z. GACOTT, JR., Presiding Judge, RTC, Branch 47, Puerto Princesa City, ARNE STROM and GRACE REYES, respondents. RESOLUTION

Obviously, respondent judge did not even bother to read the text of the cited LOI; otherwise, he would have readily acknowledged the validity of the argument advanced by the prosecution. As correctly observed by the Solicitor General, Presidential Decrees, such as P.D. No. 1, issued by the former President Marcos under his martial law powers have the same force and effect as the laws enacted by Congress. As held by the Supreme Court in the case of Aquino vs. Comelec (62 SCRA 275 [1975]), all proclamations, orders, decrees, instructions and acts promulgated, issued or done by the former President are part of the law of the land, and shall remain valid, legal, binding, and effective, unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the President. LOI No. 2 is one such legal order issued by former President Marcos in the exercise of his martial law powers to implement P.D. No. 1. Inasmuch as neither P.D. No. 1 nor LOI No. 2 has been expressly or impliedly revoked or repealed, both continue to have the force and effect of law (Rollo, pp. 7-8). xxx xxx xxx But even more glaring than respondent judge's utter inexcusable neglect to check the citations of the prosecution is the mistaken belief that the duty to inform the court on the applicable law to a particular case devolves solely upon the prosecution or whoever may be the advocate before the court. Respondent judge should be reminded that courts are duty bound to take judicial notice of all the laws of the land (Sec. 1, Rule 129, Rules of Court). Being the trier of facts, judges are presumed to be well-informed of the existing laws, recent enactments and jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments. . . . xxx xxx xxx The court is fully aware that not every error or mistake of a judge in the performance of his duties is subject to censure. But where, as in the present case, the error could have been entirely avoided were it not for the public respondent's irresponsibility in the performance of his duties, it is but proper that respondent judge be reprimanded and his order of dismissal set aside for grave ignorance of the law. For, respondent judge's error is not a simple error in judgment but one amounting to gross ignorance of the law which could easily undermine the public's perception of the court's competence. We could stop here, since the rehashed arguments raised by respondent judge in his aforesaid original and supplemental motions are completely refuted by the foregoing discussion demonstrative not only of his adjudicatory error but also of judicial incompetence. In fact, just to cite a few representative cases, it may be worthwhile for respondent judge to ponder upon the Court's observations in Aducayan vs. Flores, etc., et al., 1 Ajeno vs. Inserto, 2 Libarios vs. Dabalos, 3 and Estoya, et al. vs. Singson, etc., 4 which would put his asseverations at rest. Respondent judge, however, would want this Court to pass upon his other supplications, arguments, and even his insinuations for that

REGALADO, J.: Rebuffed by this Court through the annulment of his order dismissing Criminal Case No. 11529 of the court a quo, complemented with a reprimand and a fine of P10,000.00 for gross ignorance of the law, respondent Judge Eustaquio Z. Gacott, Jr. has filed a motion for reconsideration dated April 1, 1995, and a supplemental motion for reconsideration dated April 26, 1995. For reasons of his own but the purposes of which can easily be deduced, separate copies of the basic motion were furnished the Chief Justice, Judicial and Bar Council, Solicitor General, Bar Confidant, Integrated Bar of the Philippines, Court Administrator and his deputies, Secretary of Justice, and Ombudsman. Copies of the supplemental motion were also furnished by him to the same officials or entities and, additionally, to the individual members of this Court. In the judgment now sought to be reconsidered, the Second Division of the Court, speaking through Mr. Justice Abdulwahid A. Bidin, specified that the only issue to be resolved in this case was whether or not respondent judge gravely abused his discretion in granting the motion to quash the aforementioned criminal case. We quote the pertinent portions of his ponencia not only for easy reference but to serve as a basis for determining whether the sanctions imposed were commensurate to the administrative offense, to wit: The error committed by respondent judge in dismissing the case is quite obvious in the light of P.D. No. 1, LOI No. 2 and P.D. No. 1275 aforementioned. The intent to abolish the AntiDummy Board could not have been expressed more clearly than in the aforequoted LOI. Even assuming that the City Fiscal of Puerto Princesa failed to cite P.D. No. 1 in his opposition to the Motion to Quash, a mere perusal of the text of LOI No. 2 would have immediately apprised the respondent judge of the fact that LOI No. 2 was issued in implementation of P.D. No. 1. . . . xxx xxx xxx

matter, which although born more of fecundity in formulation and less of bases in law, we have decided to anatomize even with some expense of prolixity. Respondent judge prefaces his remedial approach with the assurance that "(t)he only purpose of (h)is motion is to plead with bended knees and with all humility for the kind reconsideration" of the decision in this case, specifically the findings that he is "grossly ignorant of the law and as such, (he) was reprimanded and fined in the amount of P10,000.00; and that the aforesaid decision is to be spread on (his) personal records." 5 He adverts to his good conduct as a person and as a judge, reiterates that the error primarily stemmed from the shortcomings of the public prosecutor and, on a personal note, he expresses this concern: ". . . I am again begging with humility that the spreading of the aforesaid Decision on my personal records be reconsidered because doing so will foreclose any chance for me to aspire for promotion in the judiciary in the future. This is very painful. I will agonize up to my last day and my last breath in life." 6 The Court assures respondent judge that it has taken all the aforesaid matters into consideration and is not insensitive thereto, including his argumentum ad misericordiam. It feels, however, that there is more than ample substantiation for the findings of the ponente in the main case, and compelling legal warrant for the administrative penalties imposed which are even milder than those meted by it under similar and comparable situations. The spreading of the decision on the personal record of a respondent is an official procedure and requirement which, incredibly, respondent judge would want this very Court to violate and forego, in suppression of facts which must appear in official documents. His further argument that The spreading of such decision on my personal records will not only open criticisms on my private qualifications as a minister in the temple of justice but will open more comments on my official acts, competence and credibility as a judge that might undermine the people's faith in the judicial system in the Province of Palawan, in Puerto Princesa City and in the entire country because it is always difficult to disassociate my private credential from that of my public qualifications. 7 is, to put it mildly, a mite too exaggerated and a tad too melodramatic. The Court regrets that respondent judge appears unaware that he is actually the recipient of uncommon sympathetic consideration in this case. Administrative penalties do not play the final strains of the valkyrian chant to a public career, judicial or otherwise. It is for respondent judge, by subsequently demonstrating his true worth through observance of judicial standards, to vindicate himself from a misjudgment which is the heritage of the heedless and to rise to higher levels which is the destiny of the deserving. Besides, it is a curious fact that assuming as valid his meticulosity on the confidential nature of disciplinary cases, he nevertheless sent copies of his motions to all the persons enumerated at the start of this resolution. It is elementary that copies of such motions are merely filed with the court and furnished only to the adverse party. Here, he wants us to keep sub rosa what he himself publicizes. From his initial exhibition of humility and penitential pose, respondent judge then goes into a critical second gear by rhetorically wondering aloud in this fashion:

On July 27, 1994, the Third Division of the Honorable Supreme Court required me to comment on the above-entitled petition. On August 23, 1994 I filed my comment thereto and on October 24, 1994, in a Resolution the Third Division of the Supreme Court resolved to note my Comment. When the Third Division of the Honorable Court required me to comment in G.R. No. 116049, the supposition is that a valid raffle of said case to that Division had already been made. That was my thinking and impression for, why would the case go to that Division except thru a valid raffle. I am now in quandary, however, as to why all of a sudden, G.R. No. 116049 was transferred to the Second Division of the Supreme Court without us or any party being informed by the Honorable Supreme Court about it. In our level at the Regional Trial Court in Palawan, we observe the raffle of cases with solemnity and abide by the result of the raffle faithfully. And the said Second Division meted me out excessive penalties when it was the Third Division that required me to comment. Why did this happen? (Emphasis supplied.) 8 Since this was obviously spoken with the ascriptive courage of the uninformed, we assure His Honor that the Supreme Court also conducts "a valid raffle," observes such raffle of its cases "with solemnity," and abides by the result thereof "faithfully." This case was validly and solemnly raffled to Mr. Justice Bidin who was then with the Third Division of the Court. On January 23, 1995, he was transferred to the Second Division where he served as working chairman until his retirement on April 7, 1995. In accordance with the internal rules of the Court, this case remained with him as the original ponente and he accordingly penned the decision therein for and as a member of the Second Division. There is no rule in the Court that the parties be informed that a case has been transferred to another division, as respondent judge would want or expect. To do so would easily be revelatory of the identity of the ponente which is precisely what some litigants used to, and still, watch for and speculate upon. In anticipation of a similar insinuendo, respondent judge is further informed that because of the retirement of Mr. Justice Bidin and the uncertainty of the date when his replacement could act upon his unfinished cases and the subsequent proceedings therein, after its summer session and working recess the Court en banc, after due deliberation on respondent judge's successive motions, decided to assign the preparation of this resolution to the present writer thereof, he having been and still is with the Second Division. Respondent judge, with his claim of extensive magisterial experience, should have verified all the foregoing facts from the records of this Court, instead of proceeding upon speculations. Finally, shifting to what he obviously fancies to be high gear on a constitutional basis, respondent judge questions the competence of the Second Division of this Court to administratively discipline him. Exordially, a mere allegatio nudus does not create a constitutional issue as to require the referral of this case, or at least the disciplinary aspect thereof, to the Court en banc. The disposition of that matter merely involves a clarification of the misconception of respondent judge thereon, presumably because of his unfamiliarity with circulars adopted and followed by this Court, some of them being on internal procedure. Be that as it may, since all the members of this Court are aware of the submissions of respondent judge on this point through the copies of the motions which he furnished them, and he insistently harps on constitutional grounds therein, the Court en banc resolved to accept this aspect of the case from the Second Division. His Honor relies on the second sentence of Section 11, Article VIII of the present Constitution which reads: "The Supreme Court en banc

shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon." This provision is an expansion of and was taken from the second sentence of Section 7, Article X of the 1973 Constitution which provided: "The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal." Stress is apparently laid by respondent judge on the inclusion of the adverbial phrase "en banc" in referring to this Court in the quoted provision of the 1987 Constitution and, from this, he argues that it is only the full Court, not a division thereof, that can administratively punish him. Fortuitously, the writer of this resolution, as a member of the Committee on the Judiciary of the 1986 Constitutional Commission, had the opportunity to take up that precise matter with the committee chairman, retired Chief Justice Roberto Concepcion, by pointing out the equivalent provision in the 1973 Constitution, hereinbefore quoted, which merely referred to the "Court," without qualification. It was accordingly explained and agreed that insofar as the power to discipline is concerned, the qualification was not intended to make a difference, as a reference to the Court by itself necessarily means the Court en banc. It was only decided to state "en banc" there because all internal procedural and administrative matters, as well as ceremonial functions, are always decided by or conducted in the Court en banc. On the other hand, where the reference is to the Court acting through its divisions, it would necessarily be so specified. For lack of transcription of the proceedings of the committees of said Commission, the writer has perforce to rely on his recollection and notes, but he assures this Court of the foregoing facts as they transpired. At any rate, the very text of the present Section 11 of Article VIII clearly shows that there are actually two situations envisaged therein. The first clause which states that "the Supreme Court en banc shall have the power to discipline judges of lower courts," is a declaration of the grant of that disciplinary power to, and the determination of the procedure in the exercise thereof by, the Court en banc. It was not therein intended that all administrative disciplinary cases should be heard and decided by the whole Court since it would result in an absurdity, as will hereafter be explained. The second clause, which refers to the second situation contemplated therein and is intentionally separated from the first by a comma, declares on the other hand that the Court en banc can "order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted therein." Evidently, in this instance, the administrative case must be deliberated upon and decided by the full Court itself. Pursuant to the first clause which confers administrative disciplinary power to the Court en banc, on February 9, 1993 a Court En Banc resolution was adopted, entitled "Bar Matter No. 209. In the Matter of the Amendment and/or Clarification of Various Supreme Court Rules and Resolutions," and providing inter alia: For said purpose, the following are considered en banc cases: xxx xxx xxx

xxx xxx xxx This resolution was amended on March 16, 1993 and November 23, 1993, but the aforequoted provision was maintained. Indeed, to require the entire Court to deliberate upon and participate in all administrative matters or cases regardless of the sanctions, imposable or imposed, would result in a congested docket and undue delay in the adjudication of cases in the Court, especially in administrative matters, since even cases involving the penalty of reprimand would require action by the Court en banc. This would subvert the constitutional injunction for the Court to adopt a systematic plan to expedite the decision or resolution of cases or matters pending in the Supreme Court or the lower courts, 9 and the very purpose of authorizing the Court to sit en banc or in divisions of three, five, or seven members. 10 Yet, although as thus demonstrated, only cases involving dismissal of judges of lower courts are specifically required to be decided by the Court en banc, in cognizance of the need for a thorough and judicious evaluation of serious charges against members of the judiciary, it is only when the penalty imposed does not exceed suspension of more than one year or a fine of P10,000.00, or both, that the administrative matter may be decided in division. It must not also be overlooked that as early as February 7, 1989, the Court promulgated Circular No. 2-89 which clarifies that: xxx xxx xxx 2. A decision or resolution of a Division of the Court, when concurred in by a majority of its members who actually took part in the deliberations on the issues in a case and voted thereon, and in no case without the concurrence of at least three of such Members, is a decision or resolution of the Supreme Court (Section 4[3], Article VIII, 1987 Constitution). That guideline or rule in the referral to the Court en banc of cases assigned to a division thereof rests on the same rationale and applies with equal force to confute the antithetical theory of respondent Judge Eustaquio Z. Gacott, Jr. Apropos thereto, it would indeed be desirable for said respondent to hereafter deal with situations like the one subject of this resolution with more perspicacity and circumspection. WHEREFORE, the basic and supplemental motions for reconsideration of the judgment in the case at bar are hereby DENIED. This resolution is immediately final and executory. SO ORDERED. Republic of the Philippines SUPREME COURT Baguio EN BANC A.M. No. 91-10-160 May 15, 1996

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the Judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000.00, or both.

RE: REQUEST OF JURISCONSULT SAMANODIN L. AMPASO FOR UPGRADING OF HIS POSITION TO SALARY GRADE 31, EQUIVALENT TO ASSOCIATE JUSTICE OF THE SUPREME COURT. RESOLUTION

PER CURIAM:p Samanodin L. Ampaso, former Judge of the Shari'a Circuit Court in Tubod, Lanao del Norte, was appointed as Juris-consult in Islamic Law on March 26, 1991 by then President Corazon C. Aquino, and took his oath of office on April 10,1991. The said position was created by virtue of Section 164, paragraph 2 of P. D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines. Thereafter, on May 2, 1991, the newly appointed Juris-consult requested this Court for the upgrading of his position to Salary Grade 31, equivalent to an Associate Justice of the Supreme Court, claiming that under P.D. 1083 he is the highest Muslim Judicial Officer of the Philippines. He also submitted a proposed plaintilla calling for the creation of 209 staff positions for the Office of the Jurisconsult. Under P.D. 1083, a Jurisconsult in Islamic Law or Muffi is an officer who renders legal opinions on any question relating to Muslim law. He assist the Qadi or Judge, by giving him fatwas or legal opinions. The opinions thus rendered shall merely serve to enlighten the court or the parties concerned, who, however are not necessarily bound to follow the same. The pertinent provisions of P.D. 1083 are herein below reproduced for ease of reference: Title III. Jurisconsult in Islamic Law Art. 164. Creation of office and appointment. (1) There shall be a Jurisconsult in Islamic Law, who shall be appointed by the President of the Philippines and hold office for a term of seven years, without prejudice to reappointment, unless sooner removed for cause or incapacitated to discharge the duties of his office. (2) The Office of the Jurisconsult shall be under the administrative supervision of the Supreme Court of the Philippines, which shall also fix its permanent station, preferably in the City of Zamboanga. Art. 165. Qualifications. No person shall be appointed Jurisconsult in Islamic Law unless he is a citizen of the Philippines, at least forty years of age, of good moral character and proven integrity, and an eminent scholar in the Qur'an and Hadith and in Islamic jurisprudence as well as proficient in Arabic. Art. 166. Functions. (1) The Jurisconsult shall, on the written request of any interested party, have the authority to render legal opinions, based on recognized authorities, regarding any question relating to Muslim Law. For this purpose, he may, if he deems it necessary, consult or ask for a consensus of the 'ulama. (2) The Jurisconsult shall consider and act on every such request unless, in his opinion and for good reason, the question need not be answered.

(3) The Office of the Jurisconsult shall keep a compilation and cause the publication of all his legal opinions. Art. 167. Compensation. Until otherwise provided by law, the jurisconsult shall receive an annual compensation of forty-eight thousand pesos which shall not be diminished during his term of office. Art. 168. Office personnel. The Jurisconsult may, in accordance with the Civil Service Law and subject to the approval of the Supreme Court, appoint and fix the compensation of such personnel as may be necessary for the performance of his functions. However, a cursory check by the Office of the Court Administrator into the 201 files of Mr. Ampaso revealed that he was born on January 2, 1952. This information regarding his date of birth was personally supplied by him in his Personal Data Sheet for judges and in the information sheet for membership in the GSIS which he personally filled up and filed on July 1, 1985. On the basis of such data, it is evident that when he took his oath as Jurisconsult on April 10, 1991, he was only 39 years, 3 months and 8 days, and that therefore, he failed to comply with the age requirement as provided under Article 165 of P.D. 1083. Thus, on March 31, 1992, the Court through an en banc resolution required Mr. Ampaso to show cause why he should not be removed from office for failing to fulfill the age requirement at the time he took his oath as Jurisconsult. In his comment, he claimed that his true birthdate is January 2, 1948 and not January 2, 1952 as appearing in his GSIS information sheet and personal data sheet, and that the latter documents were not personally prepared by him but by his brother who inadvertently misstated the year of his birth. To support his claim, he submitted various documentary proof, including the original of his passport issued on July 17, 1985, and a duplicate copy of his "Birth Certificate for Late Registration" issued on February 10, 1983. He alleged that the mis-statement in his year of birth was not done in bad faith nor was it intended to cause damage to any party, it having been the result of an honest mistake. Obviously, the issue of the validity of the appointment of Mr. Ampaso as Jurisconsult must first be resolved before determining whether or not his request for upgrading of salary is proper. The resolution of said primordial issue hinges on whether all the requirements for the appointment had been duly complied with or not. The Senior Deputy Court Administrator found the comment and explanation of Mr. Ampaso attributing to his brother the innocent mis-declaration of his year of birth, to be unacceptable. We hold that Mr. Ampaso's claim is nothing but a lame excuse and a mere afterthought. It is very unlikely, improbable and unbecoming that a person aspiring to such a high office would request another to fill up and file such personal data farms. But granting that he did make such request, still, he himself had to sign the forms just the same prior to filing, and in the normal course of things, he should have read the documents before affixing his signature thereto. That he signed it without reading and/or understanding its contents is not excusable, nor credible. As an aspiring member of the Bench, it was incumbent upon Mr. Ampaso to check and double-check important personal data being supplied through such forms. It is thus no excuse to say that someone else prepared the forms or that his own brother must have forgotten. (or was not aware of) his year of birth. The subsequent submission of what purports to be a lateregistration birth certificate (uncertified), plus a passport and affidavits of disinterested person attesting to his actual date of birth

did not cure the defect. Neither do they constitute adequate proof as to the actual date/year of his birth, since the affidavits are hearsay and self-serving, while passports by their very nature and process of issurance cannot pass as conclusive evidence insofar as the year and date of birth are concerned, since such data are supplied by the passport applicants themselves. Neither would purportedly issued some thirty-five (35) years after the supposed date of birth. The foregoing premises considered, we are constrained to hold that the appointment of Mr. Ampaso as Jurisconsult was legally invalid from the beginning. WHEREFORE, premises considered, the Court hereby Resolves to declare NULL and VOID ab initio the appointment of Samanodin Ampaso as Jurisconsult. SO ORDERED. EN BANC IN RE: UNDATED LETTER OF MR. LOUIS C. BIRAOGO, PETITIONER IN BIRAOGO V. NOGRALES AND LIMKAICHONG, G.R. No. 179120. A.M. No. 09-2-19-SC

February 24, 2009

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DECISION PER CURIAM: Before this Court is the Report of the Investigating Committee created under the Resolution dated December 10, 2008, to investigate the unauthorized release of the unpromulgated ponencia of Justice Ruben T. Reyes in the consolidated cases of Limkaichong v. COMELEC, Villando v. COMELEC, Biraogo v. Nograles and Limkaichong, and Paras v. Nograles, docketed as G.R. Nos. 178831-32, 179240-41, 179120 and 179132-33, respectively, to determine who are responsible for the leakage of a confidential internal document of the En Banc. The investigating committee, composed of Mr. Justice Leonardo A. Quisumbing as Chairperson and Mme. Justice Conchita Carpio Morales and Mr. Justice Renato C. Corona as Members, submitted the following report: INVESTIGATING COMMITTEE CREATED UNDER THE EN BANC RESOLUTION DATED DECEMBER 10, 2008 MEMORANDUM FOR: HON. REYNATO S. PUNO, Chief Justice HON. CONSUELO YNARES-SANTIAGO, Associate Justice

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, and

HON. ANTONIO T. CARPIO, Associate Justice HON. MA. ALICIA AUSTRIA-MARTINEZ, Associate Justice HON. DANTE O. TINGA, Associate Justice

PERALTA, JJ. HON. MINITA V. CHICO-NAZARIO, Associate Justice Promulgated: HON. PRESBITERO J. Associate Justice VELASCO, JR.,

HON. ANTONIO EDUARDO B. NACHURA, Associate Justice HON. TERESITA J. LEONARDO-DE CASTRO, Associate Justice HON. ARTURO D. BRION, Associate Justice HON. DIOSDADO M. PERALTA, Associate Justice RE: Report on the Investigation of the Unauthorized Release of the Unpromulgated Ponencia of Justice Ruben T. Reyes in the Consolidated Cases of Limkaichong v. COMELEC, Villando v. COMELEC, Biraogo v. Nograles and Limkaichong, and Paras v. Nograles, Docketed as G.R. Nos. 178831-32, 179240-41, 179120 and 179132-33, Respectively, to Determine Who are Responsible for the Leakage of a Confidential Internal Document of the En Banc

During its session on July 22, 2008, the En Banc deliberated on Justice Carpios Reflections which had in the meantime been circulated to the members of the Court. As a result, the En Banc unanimously decided to push through and set the date for holding oral arguments on the Limkaichong case on August 26, 2008. On the request of Justice Reyes, however, the Limkaichong case was included in the agenda of July 29, 2008 where it was listed as Item No. 66. The decision to hold oral arguments remained, however. On December 9, 2008, Louis C. Biraogo, petitioner in Biraogo v. Nograles and Limkaichong, G.R. No. 179120, held a press conference at the Barrio Fiesta Restaurant in Maria Orosa Street, Ermita, Manila, and circulated to the media an undated letter signed by him, together with what appeared to be a xerox copy of the unpromulgated ponencia. In his letter, Biraogo insinuated that the Court, at the instance of the Chief Justice and with the implied consent of the other Justices, unlawfully and with improper motives withheld the promulgation of the ponencia. Noting that the unauthorized release of a copy of the unpromulgated ponencia infringed on the confidential internal deliberations of the Court and constituted contempt of court, the Court, in a Resolution dated December 10, 2008, directed

Respectfully submitted for the consideration of the Honorable Chief Justice and Associate Justices of the Supreme Court the following report on the results of the investigation of the committee created under the En Banc Resolution dated December 10, 2008. ANTECEDENT FACTS During its session on July 15, 2008, the Court En Banc continued its deliberations on the draft of Justice Ruben T. Reyes in the consolidated cases of Limkaichong v. Comelec, Villando v. Comelec, Biraogo v. Nograles and Limkaichong, and Paras v. Nograles, docketed as G.R. Nos. 178831-32, 179240-41, 179120 and 179132-33, respectively, (Limkaichong case) which was used by this Court as a working basis for its deliberations. Since no one raised any further objections to the draft, the En Banc approved it. It having been already printed on Gilbert paper, albeit a number of Justices manifested that they were concurring in the result, Justice Reyes immediately circulated the ponencia during the same session. After the session and during lunch, Chief Justice Reynato S. Puno noted that seven of the 13 Justices (excluding Justice Reyes) concurred in the result with the ponencia of Justice Reyes (hereafter Gilbert copy or Justice Reyess ponencia or ponencia or unpromulgated ponencia). Justices Minita ChicoNazario and Teresita Leonardo-De Castro then informed the Chief Justice that they too wanted to concur only in the result. Since nine Justices, not counting the Chief Justice, would concur only in the result, the Justices unanimously decided to withhold the promulgation of the Gilbert copy. It was noted that if a majority concurred only in the result, the ponencia would have no doctrinal value. More importantly, any decision ousting a sitting member of the House of Representatives should spell out clearly the legal basis relied upon by the majority for such extreme measure. Justice Antonio T. Carpio then volunteered to write his Reflections on Justice Reyess ponencia for discussion in the following weeks En Banc session.

1.

The creation of an Investigating Committee, chaired by Senior Associate Justice Leonardo A. Quisumbing, with Associate Justice Consuelo Ynares-Santiago, Chairperson, Third Division and Associate Justice Antonio T. Carpio, Working Chairperson, First Division, as Members to investigate the unauthorized release of the unpromulgated ponencia of Justice Reyes to determine who are responsible for this leakage of a confidential internal document of the En Banc, and to recommend to the En Banc the appropriate actions thereon;

2. Mr. Louis C. Biraogo to SHOW CAUSE, within ten (10) days from receipt of this Resolution, why he should not be punished for contempt for writing the undated letter and circulating the same together with the unpromulgated ponencia of Justice Reyes. As directed, the committee, composed of the aforementioned three senior Justices, conducted initial hearings on December 15 and 16, 2008. In the meantime, in compliance with the Courts above-quoted Resolution dated December 10, 2008, Biraogo submitted to the Court his Compliance dated December 22, 2008 to which he attached the following annexes: (1) an undated photocopy of a 3-page printed letter addressed to Dear Mr. Biraogo which purportedly was sent by a Concerned Employee as Annex A; (2) a June

12, 2008 note handwritten on a memo pad of Justice Reyes reading:

11.

Atty. Felipa B. Anama , Assistant Clerk of Court Willie Desamero, Records Officer III, Office of the Clerk of Court Glorivy Nysa Tolentino, Executive Assistant I, Office of Associate Justice Antonio Eduardo B. Nachura Onofre C. Cuento, Process Server, Office of the Clerk of Court Chester George P. Del Castillo , Utility Worker, Office of Associate Justice Ruben T. Reyes Conrado B. Bayanin, Jr., Messenger, Office of Associate Justice Ruben T. Reyes Fermin L. Segotier , Judicial Staff Assistant II, Office of Associate Justice Antonio Eduardo B. Nachura Retired Justice Ruben T. Reyes

12. Re: G.R. Nos. 178831-32, etc. [the comma and etc. are handwritten] Dear Colleagues, I am circulating a revised draft of the ponencia. (Sgd.) RUBEN T. REYES, together with a copy of Justice Reyess Revised Draft ponencia for the June 17, 2008 agenda as Annex B; (3) a photocopy of the unpromulgated ponencia bearing the signatures of 14 Justices as Annex C; and (4) a photocopy of Justice Carpios Reflections as Annex D. Justice Ynares-Santiago later inhibited herself upon motion of Justice Ruben T. Reyes while Justice Carpio voluntarily inhibited himself. They were respectively replaced by Justice Renato C. Corona and Justice Conchita Carpio Morales, by authority of the Chief Justice based on seniority. Additional hearings were then held by the reconstituted committee on January 14, 16, 19, 20, 21 and 22, 2009. The following witnesses/resource persons were heard: 1. Armando A. Del Rosario , Court Stenographer III, Office of Associate Justice Ruben T. Reyes 2. Rodrigo E. Manabat, Jr., PET Judicial Staff Officer II, Office of Associate Justice Ruben T. Reyes Atty. Rosendo B. Evangelista, Judicial Staff Head, Office of Associate Justice Ruben T. Reyes Associate Justice Minita V. Chico-Nazario Associate Justice Antonio Eduardo B. Nachura Associate Justice Teresita J. Leonardo-De Castro ACA Jose Midas P. Marquez, Chief, Public Information Office Ramon B. Gatdula , Executive Assistant II, Office of the Chief Justice Atty. Ma. Luisa D. Villarama, Clerk of Court En Banc Major Eduardo V. Escala, Chief Judicial Staff Officer, Security Division, Office of Administrative Services 15.

13.

14.

16.

17.

18.

SUMMARIES OF TESTIMONIES Below are the summaries of their testimonies: 1. ARMANDO A. DEL ROSARIO, Court Stenographer III, Office of Associate Justice Ruben T. Reyes, testified as follows: He was in charge of circulating ponencias for the signatures of the Justices and of forwarding signed (by all the Associate Justices who are not on leave) ponencias to the Office of the Chief Justice (OCJ). On July 15, 2008, after the En Banc session, he received from Justice Reyes the original of the unpromulgated ponencia (Gilbert copy). Because he was busy at that time, he instructed his coemployee Rodrigo Manabat, Jr. to bring the Gilbert copy to the Office of Justice Nachura for signature and to wait for it. He instructed Manabat to rush to Justice Nachuras office because the latter was going out for lunch. After more than 30 minutes, Manabat returned with the Gilbert copy already signed by Justice Nachura, who was the last to sign. Del Rosario then transmitted the Gilbert copy together with the rollo, temporary rollos, and diskettes to the OCJ pursuant to standard operating procedures for the promulgation of decisions. The documents were received by Ramon Gatdula on the same day at around 3:00 p.m. The following day, on July 16, 2008, at around 4:00 p.m., Justice Reyes instructed him to retrieve the Gilbert copy and the accompanying documents and diskettes as he was told that the promulgation of the ponencia had been

3.

4. 5.

6.

7.

8.

9.

10.

placed on hold. He brought the Gilbert copy to Justice Reyes who told him to keep it. He then placed the Gilbert copy in a sealed envelope and placed it inside his unlocked drawer and wrote a note in his logbook when he retrieved the Gilbert copy that its promulgation was on hold and would be called again on July 29, 2008. The Gilbert copy was in his sole custody from July 16, 2008 until December 15, 2008 (when the investigating committee held its first hearing). He never opened the envelope from the day he sealed it on July 16, 2008 until December 10, 2008, when Justice Reyes told everybody in their office that the Gilbert copy had been photocopied and leaked. He did not have any news of any leakage before then. And he also did not photocopy the Gilbert copy. The seal placed on the envelope was still intact when he opened it on December 10, 2008. Although the lawyers in their office knew that he kept original copies of drafts in his unlocked drawer, he believed that nobody in his office was interested in photocopying the Gilbert copy. He was solely responsible for keeping the Gilbert copy. He did not know any of the parties to the case and none of them ever called him. And he did not know what Gatdula did after receiving the Gilbert copy. The Limkaichong case was called again on July 29, 2008 as Item No. 66. The Office of Justice Reyes received the En Banc agenda for the said date on July 25, 2008. Upon receipt of the said En Banc agenda and the new item number, their office prepared a new cover page and attached it to the Gilbert copy. The original cover page of the Gilbert copy for the agenda of July 15, 2008 showing the case as item number 52 was thrown away. On being recalled on January 20, 2009, Del Rosario further testified as follows: On July 15, 2008 when the Justices were about to leave the En Banc session room after the adjournment of the session, he entered the room just like the rest of the aides. He carried the folders of Justice Reyes, returned them to the office, and went back to, and waited for Justice Reyes until Justice Reyes finished lunch at the En Banc dining room. The Gilbert copy was left with Justice Reyes. Before 1:00 p.m., after the Justices had taken lunch, Justice Reyes, who was then carrying an orange envelope, handed to him the Gilbert copy and instructed him to speed up the ponencias signing by Justice Nachura (who was not taking part in the oral arguments of a case scheduled at 1:30 p.m. that day) since the latter might be leaving. He heard Justice Reyes say Ihabol mo ito Ihabol na ipapirma kay Justice Nachura in the presence of

Judicial Staff Head, Atty. Rosendo Evangelista, as the three of them were going down the stairs to their office from the session room. He was not the one who brought the ponencia to the Office of Justice Nachura because he gave the task to Manabat to whom he relayed the instruction. There were already signatures on page 36 of the ponencia when he gave it to Manabat and only the signature of Justice Nachura was missing. He pointed this to Manabat saying, ito na lang ang walang pirma, dalhin mo doon. Manabat obliged him. After a few minutes, Manabat returned to their office bearing the Gilbert copy. He went to Atty. Evangelista, showing him that the ponencia had already been signed by Justice Nachura. Atty. Evangelista then instructed him to have the ponencia promulgated by delivering the same to the OCJ. He (Del Rosario) complied, personally handing the Gilbert copy with the rollo, records and diskettes to Ramon Gatdula of the OCJ at 3:30 p.m., also of July 15, 2008. The ponencia stayed at the OCJ until the afternoon of the following day, July 16, 2008. He was not told that the promulgation of the ponencia was on hold until the afternoon of July 16, 2008, when Justice Reyes called him to his chambers and instructed him to retrieve the ponencia. He also stated that someone from the OCJ called their office and requested them to retrieve the ponencia because its promulgation was on hold. At 4:00 p.m. that day, he retrieved the ponencia etc. from the OCJ and gave the ponencia to Justice Reyes. He merely showed the ponencia to Justice Reyes who ordered him to keep it (tabi mo muna yan). He then placed a note Hold, reset July 29 in his logbook after being informed by Atty. Evangelista of such date of resetting. He reiterated that he placed the Gilbert copy in a brown envelope, sealed it with the officially issued blue and white seal provided by the Printing Office, and placed the envelope inside his unlocked drawer. The envelope was still sealed when he checked it on December 10, 2008. He admitted that from the time he kept the Gilbert copy in his drawer until the Special En Banc meeting on December 10, 2008, he and no one else was in possession of the Gilbert copy. But he denied that he ever opened the envelope or photocopy the Gilbert copy. In fact, he did not mind it. And nobody inquired about it since July 16, 2008 until December 10, 2008. He likewise denied that he knew Congressman Paras or Biraogo or that the two ever called his office.

When asked if he could produce the envelope into which he placed the Gilbert copy, he replied that Justice Reyes had taken it. He also informed that what was placed on the face of the brown envelope was a computer print-out containing the title of the case, the names of the ponente and the other Justices, and the manner they voted. When he was asked by Justice Carpio Morales whether it was possible for him to recognize any tampering if, for instance, the envelope and the seal were replaced with a similar envelope and blue and white seal with a similar print-out information on the face of the envelope, he answered in the negative. (At that point, Justice Carpio Morales remarked that Del Rosario, therefore, could not have been certain when he said that the envelope remained sealed from July 16, 2008 to December 10, 2008.) Nobody else knew where he put the Gilbert copyin the same place as the other drafts. It was possible for someone to take the Gilbert copy from his drawer and photocopy it on a weekend or after office hours. Nobody told him to guard the Gilbert copy. Everybody in the office knew how to operate the xerox machine. He drew a sketch of the layout of the desks inside the office of Justice Reyes, illustrating that his location was two desks away from the table of April Candelaria, a secretary in the office, and that the xerox machine was situated at the back of the long table of the receiving clerks. He stayed in the office as long as Justice Reyes was still there but he could not say for sure that nobody photocopied the Gilbert copy after office hours as he also went out of the office to smoke in the nearby garden area or repair to the toilet. He never reported to office on Saturdays and there was one time Justice Reyes went to office on a Saturday as he was also asked to report but he refused. Justice Reyes sometimes dropped by the office on Sundays after attending services at the United Methodist Church along Kalaw Street, as told to him by the driver. He also circulated copies of the Revised Draft of the decision to the other Justices but he never received a copy of Justice Carpios Reflections. He did not offer an explanation why the Gilbert copy, which was in his possession, and the Revised Draft, were leaked. No information was supplied by his officemates, friends or relatives to help explain the leakage. Among his relatives working in the Court are his mother-in-law, Jasmin P. Mateo of the OCJ, sister of former Court Administrator

Ernani Pano, and Mrs. Mateos sibling, who works at the Hall of Justice Committee. He and the driver of Justice Reyes were given keys to the main door of the Office of Justice Reyes but he could not say that only the two of them held keys to the main door. April Candelaria and Atty. Ferdinand Juan asked for and got duplicates of the key, but could not remember exactly when. Atty. Juan got a duplicate of the key because the lawyers sometimes went out for dinner and needed to go back to the office to retrieve their personal belongings. April Candelarias secretarial functions included recording of the social activities of Justice Reyes and delivering door-to-door papers to his chambers. Candelaria and the driver were in the staff of Justice Reyes since the latters stint at the Court of Appeals, while Atty. Juan was employed ahead of him. Everybody in the office knew how to operate the xerox machine because all of them photocopied personal documents and were too ashamed to ask other officemates to do it for them. When news of the leakage came out, Justice Reyes called all his legal staff and him to a meeting. In a tone that was both angry and sad, Justice Reyes asked them if they knew anything about the leakage. A meeting among Justice Reyes, Atty. Evangelista, Manabat and him took place on December 15, 2008, before the initial hearing by the investigating committee. Justice Reyes also talked to him one-on-one and asked him if a copy of Justice Carpios Reflections was attached to the Gilbert copy and other documents when they were sent to the OCJ. He replied that there was none and that he just kept the Gilbert copy in his drawer and had in fact forgotten all about it until Justice Reyes inquired about it in December. He was not able to read Jarius Bondocs column about the leakage of the Gilbert copy (which came out in the Inquirer in October 2008 about the Gilbert copy) nor had Justice Reyes confronted him about said column before December 2008. During the initial hearing in December 15, 2008, nobody talked to him or knew that he was testifying as he was even surprised that he was called to testify. When confronted with the testimony of his officemate, Chester Del Castillo, who testified that Justice Reyes called only one meeting, he opined that Del Castillo might not have known about the meeting with the lawyers since Del Castillo was frequently absent.

2. RODRIGO E. MANABAT, JR., PET Judicial Staff Employee II, Office of Associate Justice Ruben T. Reyes, testified as follows: He was the personal aide of Justice Reyes. On July 15, 2008, he brought the Gilbert copy to the Office of Justice Nachura for signature upon the instruction of Del Rosario and Atty. Evangelista. He gave the Gilbert copy to the receptionist and waited outside the said office. After ten minutes, the document was returned to him. He then immediately gave it to Del Rosario. It took him not more than 15 minutes to return the document to Del Rosario. He averred that he did not photocopy the Gilbert copy nor did he notice if anybody from the Office of Justice Nachura photocopied it. He also did not know if Del Rosario placed the document in a sealed envelope or photocopied it. After returning the Gilbert copy to Del Rosario, he went back to Justice Reyes who asked him if Justice Nachura had already signed the ponencia. He answered yes and told Justice Reyes that the ponencia was already with Del Rosario.

photocopy of the Gilbert copy nor did he order Del Rosario and Manabat to make photocopies. Neither did he know how the Gilbert copy was photocopied. He only came to know about the leakage last December 10, 2008. When, on January 22, 2009, he was recalled by the committee, he further testified as follows: He occupied the last cubicle in the lawyers room and the xerox machine was located outside the lawyers room. It was upon the instruction of Justice Reyes that their office reprint page 36 of the Gilbert copy and circulate it for signature. The instruction to circulate the reprinted page, which was circulated together with the other pages of the Gilbert copy, was given by him to either Manabat or Del Rosario. He saw the original page 36 where Justice ChicoNazario (supposedly) wrote the phrase in the result on top of her signature. Aside from him, Court Attorney VI Czar Calabazaron, who principally researched on the case, also saw the qualification in Justice Chico-Nazarios signature while the Gilbert copy lay on top of Justice Reyess coffee table inside his chambers. He recalled that at about 12:30 p.m. or before 1:00 p.m. right after the En Banc session on July 15, 2008, Justice Reyes called the him and Atty. Calabazaron to his chambers. In that meeting, Justice Reyes phoned Justice Chico-Nazario after noticing that Justice Chico-Nazarios signature bore the notation in the result. He, however, did not hear what they talked about since the less-than-fiveminute phone conversation was inaudible, even though he was just approximately one meter away. Justice Reyes thereafter instructed him to reprint the second signature page (page 36). He assumed from the context of the instruction that it was due to the change in Justice ChicoNazarios concurrence, without asking Justice Reyes the reason therefor. He then directed the stenographer to, as she did, reprint the second signature page, page 36, which was brought in to Justice Reyes in his chambers. He attended the oral arguments on a case scheduled at 1:30 p.m. on that day (July 15, 2008) and arrived at the session hall before that time. As far as he could recall, he went down to the Office of Justice Reyes about 3:00 p.m. to retrieve a material needed for the oral arguments. He denied having testified that he went down purposely to check if the ponencia had been circulated and the second signature page signed anew and to make sure that the ponencia had already been transmitted to the OCJ. When confronted with the transcript of stenographic notes, he maintained that it was part of his duties to see to it that every ponencia of Justice Reyes was promulgated. He was sure that he went

3. ATTY. ROSENDO B. EVANGELISTA, Judicial Staff Head, Office of Associate Justice Ruben T. Reyes, testified that as follows: Around 1:00 p.m. on July 15, 2008, Justice Reyes instructed him to have signature page 36 of the ponencia reprinted and circulated for signing allegedly because Justice Minita ChicoNazario wanted to change her qualified concurrence thereonin the resultto an unqualified concurrence. He thus instructed Jean Yabut, the stenographer in charge of finalizing drafts, to reprint page 36 of the Gilbert copy. Then he ordered the reprinted page circulated for signatures together with the other pages of the ponencia. He assumed that the original page 36 was discarded as it was no longer in their files. He likewise assumed that the signatures were completed on the reprinted page 36 as the Gilbert copy was forwarded around 3:00 p.m. to the OCJ per standard operating procedure. He was not informed then by Justice Reyes or anybody that the promulgation of the Gilbert copy had been put on hold per agreement of the Justices. He came to know that it was on hold only on July 17, 2008, when Del Rosario informed him upon his arrival at the office. Because the information was unusual and because it was his duty to make sure that signed decisions were promulgated, he asked Justice Reyes. Justice Reyes then confirmed that the promulgation of the ponencia was on hold. After that, he just assumed that the Gilbert copy was in their office with Del Rosario who was assigned to keep such documents. However, he did not know exactly where in his work area Del Rosario kept it. He did not make a

down to their office at around 3:30 p.m., although he could not recall his purpose for doing so. It was probably to get some materials related to the oral arguments, and that it just so happened that Del Rosario saw him and informed him that the Gilbert copy had already been transmitted to the OCJ. When asked as to the whereabouts of the original signature page 36, he surmised that it must have been shredded since it was not made part of the official documents submitted to the OCJ. While he searched for it in his cubicle, it could no longer be located. He did not inquire from Justice Reyes or from Del Rosario who also had access to that page, because he assumed that it could not be located since what was submitted to the OCJ was the one where Justice Chico-Nazarios concurrence was no longer qualified by the phrase in the result. As he was attending the oral arguments, he had no opportunity to see the reprinted signature page 36 with the affixed signatures prior to the transmittal to the OCJ. He came to know that the Gilbert copy was retrieved on July 16, 2008. It was Del Rosario who informed him on July 17, 2008 that the promulgation of the ponencia was on hold and was returned to their office. Justice Reyes did not advise them earlier that the promulgation was on hold. After learning about it, he inquired from Justice Reyes who confirmed that the promulgation was indeed on hold. He never asked for the reason even though that was their first on hold incident because he thought that the case would be called again at another session. He read the newspaper reports about the unpromulgated ponencia but did not validate them with Justice Reyes. He assumed that Del Rosario, being the custodian, kept the Gilbert copy in their office. Their office reprinted the second signature page 36 of the Gilbert copy. When shown page 36 of the Gilbert copy by the committee, he assumed that it was the reprinted page since Justice Chico-Nazarios signature no longer contained any qualification. He stated that it was the practice of their office to photocopy drafts signed by Justice Reyes and to furnish the other Justices with advance copies for their review before the session. Only such drafts were photocopied. Ponencias, which had already been signed by the other Justices and printed on Gilbert paper, were never photocopied. Del Rosario only logged them in his logbook and prepared soft copies for submission to the Division Chair or the Chief Justice. He assured the committee that this practice was 100% complied with despite the fact that he was not one of those assigned to photocopy, but later

yielded to given situations by Justice Carpio Morales. When directed to compare the front page of the photocopy Biraogo submitted as Annex C to his Compliance to the Show Cause Order with the original Gilbert copy submitted to the committee by Justice Reyes, Atty. Evangelista noticed the difference in the dates of the agenda. He noted that Biraogos copy, which was the copy allegedly leaked to him, bore the agenda date July 15, 2008, while the Gilbert copy submitted by Justice Reyes to the committee bore the agenda date July 29, 2008. He also noted that the item numbers were also different because the Limkaichong case was listed as Item No. 52 in the photocopy submitted by Biraogo, whereas in the Gilbert copy, the case was listed as Item No. 66. To him, it was probable that Biraogo got his copy from another source but it was not probable that Biraogo photocopied a copy in the office. Only a few persons were authorized to operate the xerox machine in their office, namely, Conrado Bayanin, Jr., Armando Del Rosario, Chester Del Castillo, a certain Leonard and a certain Ramon. He could not recall who among the five had been directed to photocopy the July 15, 2008 draft. He ventured a guess that the top page of the Gilbert copy might have been reprinted but could not impute any motive to any person. Even if he was the staff head, he was not privy to the preparation of the first page nor of the top cover bearing the date July 29, 2008 copy. Finally, he manifested that from the time the Gilbert copy was signed by 14 Justices until December 15, 2008, he did not acquire exclusive control or possession of the Gilbert copy because Del Rosario was the custodian thereof. He reiterated that he did not know where, exactly, Del Rosario kept the documents. He admitted that he was remiss in his duties as staff head for not knowing. It was their practice not to lock drawers. He was aware that Justice Reyes eventually prepared another draft of a ponencia changing his position in the Limkaichong case because he helped in the research in November 2008. He never consulted the Gilbert copy because he had a softcopy thereof in his computer. He did not ask why Justice Reyes was departing from his original position. He denied that he knew Biraogo, Limkaichong, Jerome Paras, Olive Paras or any party to the case. He winded up his testimony by manifesting that the investigation was an experience that he hoped would not happen again and that he would not have to undergo again.

4. ASSOCIATE JUSTICE MINITA V. CHICO-NAZARIO testified as follows: She signed the Gilbert copy only once, in the En Banc conference room before going to the En Banc dining hall. Justice Reyes was beside her, looking on, when she affixed her signature. Immediately after signing, she returned the Gilbert copy to Justice Reyes who circulated it for the signatures of the other Justices. She remembered that Justice Reyes was holding the document even when the Justices were already at the dining hall. She did not photocopy the ponencia nor was there any opportunity for her to do so as there was only one Gilbert copy and the only time she held it was when she affixed her signature. She added that her concurrence to the ponencia was without qualification but when it was noted during lunch that most of the Justices had simply concurred in the result, she and Justice Teresita Leonardo-De Castro signified their intention to qualify their concurrence and concur likewise only in the result. However, she was no longer able to indicate the change on the document as she and the other Justices had decided to put on hold the promulgation of the decision until after holding oral arguments on the Limkaichong case. No reprinted signature page was ever sent to her office for her signature and she did not affix her signature on any other copy of the ponencia. She was not the last to sign the ponencia.

opportunity to photocopy the ponencia as he was not in custody thereof. Although he knew the husband of one of the petitioners, Olivia Paras, neither she nor her husband ever asked for a copy of the ponencia.

7. ASSISTANT COURT ADMINISTRATOR JOSE MIDAS P. MARQUEZ, Chief, Public Information Office (PIO), testified as follows: The copy of Biraogos undated letter with the attached copy of the unpromulgated ponencia of Justice Reyes, which he furnished the En Banc, came from a member of the media. Around 3:00 p.m. on December 9, 2008, a reporter called him on the phone, asking if he would like to give a statement because Biraogo was going to hold a press conference about the Limkaichong case later that day at Barrio Fiesta Restaurant, in front of the Court of Appeals. He requested the reporter to inform him of what was going to be taken up during the press conference. The reporter went to his office around 5:00 p.m. the same day, and furnished him a copy of Biraogos undated letter. Attached to the letter was a copy of the unpromulgated ponencia. The reporter informed him that Biraogo distributed to the media during the press conference copies of the letter and the attachment. Sometime in October 2008, months before Biraogo held the press conference, Jarius Bondoc had published a blind item column on the Limkaichong case. On November 8, 2008, another column, this time by columnist Fel Maragay, came out in the Manila Standard. The words used in both columns were the same so he thought that there was really an effort to report the story in the media. Knowing Jarius Bondoc to be a respectable journalist, he met with him to clarify matters as many of the statements in the news item were false or inaccurate. He provided Bondoc with the surrounding circumstances on the matter so that Bondoc would have the proper context in case he was again requested to publish the story. Bondoc offered to write about what he had said, but he told Bondoc that there was no need because there was no truth to the story given to the media anyway. He left it to Bondoc whether he would use the new information if he was again asked to publish the story. The leak could not have come from the PIO as they were never given a copy of the unpromulgated ponencia bearing the signatures of 14 Justices. He also did not bring drafts from the OCJ to the PIO. It is only after a case has been promulgated that the Clerk of Court gives the PIO copies. But in this case, the Clerk of Court did not even have a copy as the

5. ASSOCIATE JUSTICE TERESITA J. LEONARDO-DE CASTRO testified as follows: She signed the Gilbert copy right after the En Banc session and Justice Reyes was right beside her when she signed the ponencia. No reprinted signature page 36 was ever sent to her office for signature and she did not affix her signature on any other copy of the ponencia. She did not photocopy the ponencia and there could have been no opportunity to do so right after she signed it.

6. ASSOCIATE JUSTICE ANTONIO EDUARDO B. NACHURA testified as follows: He believed that he signed the ponencia in the En Banc conference room just before he went to the En Banc dining hall for lunch. He believed he was never sent a reprinted signature page. He either returned the ponencia to Justice Reyes right after signing it or passed it on to the other Justices for them to sign. He could not recall if he was the last to sign the ponencia. Asked whether he leaked the decision, Justice Nachura replied that he did not. Nor did he order any of his staff to photocopy it. In fact, there was no

decision had not been signed by the Chief Justice.

incident of a draft ponencia being leaked except this one.

8. RAMON B. GATDULA, Executive Assistant III, Office of the Chief Justice, testified as follows: On July 15, 2008, at 3:30 p.m., he received from Armando Del Rosario the Gilbert copy of the ponencia together with the rollos and two diskettes. He kept the Gilbert copy in his locked cabinet overnight and gave it to the Chief Justices secretary the following day. In the afternoon of July 16, 2008, an employee from the Office of Justice Reyes retrieved the Gilbert copy. He did not inquire anymore about the reason why they were retrieving it as it was common practice for the offices of the ponentes to retrieve drafts whenever there were corrections. When asked whether he photocopied the ponencia, Gatdula said that he does not photocopy the decisions he receives. Their office also never photocopies decisions. They forward such decisions straight to the Clerk of Court for promulgation and they receive copies thereof only after the Clerk of Court has affixed her signature thereon and indicated the date of promulgation.

10. MAJOR EDUARDO V. ESCALA , Chief Judicial Staff Officer of the Security Division, Office of Administrative Services, testified as follows: Security personnel inspect all offices everyday at 5:00 p.m. Security personnel used to inspect even the offices of the Justices, but they stopped doing so since last year. As far as photocopiers are concerned, security personnel only make sure that these are unplugged after office hours. His office has nothing to do with the operation of the machines. They always check if employees bring out papers from the Court. But they encounter problems especially from the offices of Justices because employees from these offices always claim that they have been allowed or instructed by their Justice to bring papers home with them, and there is no way to check the veracity of those claims. Since he assumed office on July 14, 2008, he is not aware of any record of a leak. He suggested that the memory cards of the machines be checked.

9. ATTY. MA. LUISA D. VILLARAMA, the En Banc Clerk of Court, testified on the procedure for promulgation of ponencias. After the Chief Justice affixes his signature on a decision, the decision is brought together with the rollo to the En Banc Clerk of Court to be logged, recorded and checked. If the necessary requirements for promulgation are present, she signs the decision. It is at this time that the decision is considered as promulgated. The Office of the Clerk of Court distributes copies to the parties to the case. The date of promulgation is then encoded in the case monitoring system and a copy of the decision is given to the PIO. Decisions reaching their office usually come with the rollos except where a particular decision is considered rush. She denied having seen the unpromulgated ponencia of Justice Reyes and stated that the same never reached their office during the period from July 16, 2008 to December 10, 2008. She and her staff only learned of the draft decision after it was circulated by the media. In her office, decisions for promulgation are always brought to Verna Albano for recording, then to her for signature. If Verna is absent, it is Atty. Felipa Anama, the assistant clerk of court, who receives the ponencias and rollos. She further stated that in her more than 10 years of work in the Court, she never heard any

11. ATTY. FELIPA B. ANAMA , Assistant Clerk of Court, testified as follows: She acts as Clerk of Court in the absence of Atty. Villarama. Their office never releases unpromulgated ponencias and they ascertain that every decision or resolution to be promulgated is complete. She remembered that their office released the Show Cause Resolution dated December 10, 2008 and had it delivered personally to Biraogo as it was an urgent resolution. Willie Desamero was the employee who personally served the resolution on Biraogo. She indicated that it was very difficult to serve something at Biraogos residence for by the account of Desamero, he was stopped at the guard house and was made to wait in the clubhouse until Biraogo was notified of his presence; and that it took Desamero two hours to serve the December 10, 2008 resolution on Biraogo. She has been with the Supreme Court for 29 years and she never encountered a leak nor did she ever issue a resolution or decision without the signature of the Chief Justice.

12. WILLIE DESAMERO, Records Officer III, Office of the Clerk of Court En Banc, testified as follows:

He served the December 10, 2008 Resolution on Biraogo on December 12, 2008. It was difficult to serve the Resolution. It took him six rides to get to Biraogos subdivision in Laguna and when he got there, he was stopped by the security guards at the entrance of the subdivision. They asked him to wait at the clubhouse and it took Biraogo two hours to arrive. When Biraogo saw him, Biraogo commented, Ang bilis naman and bakit ka lang naka-tricycle? Meron naman kayong sasakyan? Birago read the Resolution before he signed to receive the document. Biraogo arrived in a car and had a back-up car. Biraogo was in his early 50s, was wearing short pants, and had a sarcastic smile at that time. An officemate of his had also been to Biraogos house to serve some Resolutions. While it was not his usual duty to serve court processes, Atty. Anama and Atty. Villarama requested him to serve the resolution on Biraogo since the regular process servers in their office were not then available and he is the only one in their office who resides in Laguna. In his years of service with the Court, he knew of no case which involved leakage of court documents.

Mateo Bihag. On the day he served the resolutions, they were stopped at the guardhouse and were escorted by a barong-clad security officer to Biraogos house. They had a hard time getting to the residence of Biraogo whom he does not personally know. Biraogo did not mention or send his regards to any member of the Court.

15. CHESTER GEORGE P. DEL CASTILLO, Utility Worker, Office of Associate Justice Ruben T. Reyes, testified as follows: He joined the staff of Justice Reyes in September 2007 upon the recommendation of Court of Appeals Justice Mariano Del Castillo and Retired Justice Cancio Garcia. He was the most proficient in the use of the photocopiers in the office of Justice Reyes so it was to him that the task of photocopying documents was usually given by Del Rosario and the lawyers. He, however, never photocopied any paper bearing the signatures of the Justices. He did not handle ponencias in Gilbert paper nor ever photocopy any ponencia in Gilbert paper. He usually left the office at 4:30 p.m. He sometimes saw members of the staff photocopying papers even beyond 4:30 p.m. It was Del Rosario who often gave orders to photocopy drafts and who was the most trusted member of the staff as demonstrated by the fact that he could go in and out of Justice Reyess chambers. Del Rosario never left the office before Justice Reyes and he (Del Rosario) often left late. He had never been to Barangay Malamig although he had been to Bian, Laguna. He does not know Biraogo or his wife. Neither does he know Paras. He did not know where Gilbert copies were kept. When he was asked who would leave the office first, Justice Reyes or Del Rosario, he said he did not know. Del Rosario was tasked to lock the main door of the office. The office staff knew of the leaked decision on the Limkaichong case, but the staff remained apathetic and did not talk about it. The apathy was probably because the staff thought that the matter had already been settled since Del Rosario and Atty. Evangelista had already been interviewed. He was not sure if anyone from their office was involved in the leakage. He was not part of the meeting called by Justice Reyes before the start of the investigation. Only Atty. Evangelista, Del Rosario, and Manabat were called to the meeting. He surmised that the meeting was about the leakage.

13. GLORIVY NYSA TOLENTINO, Executive Assistant I, Office of Associate Justice Antonio Eduardo B. Nachura, testified as follows: She is responsible for communications, drafts and door-to-door papers that come in at the Office of Justice Nachura. She presented page 267 of her logbook, to which Justice Reyes had earlier invited the committees attention. According to the logbook entry, the Gilbert copy was brought to their office on July 15, 2008 and that Justice Nachura signed the copy. However, since it is not office practice to record the time of receipt or release, she could not remember what time the Gilbert copy was brought to their office for signature. Nonetheless, the Gilbert copy did not stay long in their office because it was a door-to-door paper and was accordingly given preferential treatment. Justice Nachura immediately signed the ponencia when she gave it to him. However, she could not recall if Justice Nachura was the last to sign the Gilbert copy. She added that their office did not have a copy of the unpromulgated ponencia bearing the signatures of 14 Justices. They only had the advance copies circulated for concurrence.

14. ONOFRE C. CUENTO, Process Server, Office of the Clerk of Court En Banc, testified as follows: He personally served two resolutions on Biraogo at his residence last August 6, 2008, together with driver

16. CONRADO B. BAYANIN, JR., Messenger, Office of Associate Justice Ruben T. Reyes, who was called by the committee upon Justice Reyess suggestion, testified as follows: Part of his duties in the Office of Justice Reyes was to receive and release papers and rollos as he was seated near the door. It was not his duty to handle or receive ponencias in Gilbert form. He could not remember if he had ever received any paper in connection with the Limkaichong case. While he knew how to operate the xerox machine, just like all the other utility workers in the office, he had never photocopied anything signed by the Justices, especially those on Gilbert paper. When asked who handled photocopies ordered by Justice Reyes, he replied that he did not know. He did not know and had no opinion on how the ponencia was leaked. He only knew that his officemates talked about the leak, but he did not know specifically what his officemates talked about. Before Justice Reyess retirement ceremony, Justice Reyes called him to his chambers and very calmly asked him if he knew if anybody had photocopied the unpromulgated ponencia.

Biraogo did not point to him as the source of the leak of the unpromulgated ponencia; in Biraogos December 22, 2008 Compliance with the Courts Show Cause Order, Biraogo stated that his informant was allegedly a SC concerned employee who left a brown envelope with a letter and some documents in his Bian, Laguna home; it could be seen from the attachments to Biraogos Compliance that it was not only the unpromulgated ponencia or Gilbert copy that was leaked but also two other confidential documents: his Revised Draft ponencia for the June 17, 2008 agenda (attached as Annex B to the Compliance) and Justice Carpios Reflections (attached as Annex D); and since these other documents were circulated to all Justices, the investigation should not only focus on the leak of the unpromulgated ponencia but also on the leak of the two other confidential and internal documents of the Court. Justice Reyes also pointed out in his Notes as follows: the committee should not only look into his office but also the offices of Justice Carpio and the other Justices. He, however, reiterated that he had said in his media interviews that he believed that none of the Justices themselves, much less the Chief Justice, leaked the ponencia or authorized its leakage. Justice Reyes pointed out that Biraogos informant mentioned a certain Atty. Rosel, who was allegedly a close friend and former partner of Justice Carpio. Justice Reyes said that Atty. Rosel allegedly asked a favor from Justice Carpio before the latter wrote his Reflections. Thus, he said, the committee should also question Atty. Rosel and even Justice Carpio himself. On why he did not lift a finger when Biraogo got hold of the decision, despite reports regarding the leak, Justice Reyes stated that he was on a sabbatical leave with the Mandatory Continuing Legal Education research in four States in the United States from October 10, 2008 to November 1, 2008. He had nothing to do with the leak and he even prepared a second draft decision (deviating from his prior disposition) after oral arguments were held on the case. Thus, in his Notes, he posed: If he leaked it, why would he prepare a second different decision? He willingly obliged to the holding of oral arguments. He had no commitment to anybody and had no reason to leak the unpromulgated ponencia. He added, [I]f he had a hand in the leak, why would it include Justice Carpios Reflections which was contrary to the unpromulgated decision?

17. FERMIN L. SEGOTIER, Judicial Staff Assistant II and receptionist at the Office of Associate Justice Antonio Eduardo B. Nachura, testified as follows: His duty is to receive communications, but only Glorivy Nysa Tolentino keeps a logbook for the doorto-door papers that come to their office. He does not remember any details pertaining to the July 15, 2008 signing of the Limkaichong Ponencia, aside from the fact that it was to Justice Reyess staff to whom he gave it back. He assumed that it was to Del Rosario to whom he returned the Gilbert copy because in the Office of Justice Reyes, Del Rosario was the one in charge of circulating ponencias in Gilbert form for signature. He could not recall handing a Gilbert paper to Manabat. The ponencia stayed only for a short time (about 5 minutes) in their office because it was a door-to-door paper. After it was signed by Justice Nachura, it was handed back to the staff of Justice Reyes, so there was no chance for them to photocopy the ponencia. It was not their standard operating procedure to leave any Gilbert paper in their office if it could not be signed right away.

18. RETIRED JUSTICE RUBEN T. REYES, for his part, submitted during the hearing on January 22, 2009, a written statement entitled Notes/Observations (Notes) consisting of 12 paragraphs. In his Notes, Justice Reyes stressed the following:

Justice Reyes, still in his Notes, stated that no Justice in his right mind would leak the unpromulgated ponencia or other confidential documents, such as the Revised Draft and Justice Carpios Reflections. He went on to refer to Biraogos Compliance that the informant was purportedly an old hand in the Supreme Court who was accustomed to the practices of the Justices and had a circle or group in the Supreme Court. Since all his office staff, except two stenographers, one utility worker and one messenger, were all new in the Court, then the old hand referred to could not have come from his office. But if it could be proven by evidence that one of his staff was the source of the leak, Justice Reyes argued that only that staff should be made liable, for he had publicly declared that he did not and would never allow nor tolerate such leakage. More on Justice Reyess Notes: He suggested that Newsbreak writers Marites Vitug and Aries Rufo be cited for contempt of court, for obtaining, without lawful authority, confidential information and documents from the Court, officials or employees, and for writing false, malicious articles which tended to influence the investigation of the committee and to degrade, impede and obstruct the administration of justice. Aside from submitting his Notes, Justice Reyes also testified as follows: While he was first heard on January 16, 2009, after he presented a 9paragraph written statement, he noticed that it needed refinement and revision so he requested for time to edit it. Hence, he submitted his above-mentioned Notes on January 22, 2009. Justice Reyes identified the Gilbert copy, which he submitted earlier to the committee for safekeeping, and his Notes. He clarified that the Compliance he was referring to in his Notes was Biraogos December 22, 2008 Compliance with the Courts Show Cause Order. His desire to include Justice Carpio in the investigation, per number 4 of his Notes, came about because it appeared from Biraogos Compliance and from the alleged informants letter that it was not only the unpromulgated ponencia signed by 14 Justices that was leaked but also the Revised Draft ponencia and Justice Carpios Reflections. He suggested that what should be investigated was the source of the three documents. Justice Quisumbing replied that the matter seemed settled because Justice Reyes also mentioned in Paragraph No. 6 of his Notes that he believed that none of the Justices, much

less the Chief Justice, caused or authorized the leak. Justice Reyes stressed that he thought it was only fair that the Committee also call Justice Carpio to shed light on the matter in the same way that he was asked to shed light thereon. Justice Carpio Morales pointed out that Justice Reyess ponencia as signed by 14 Justices did not come into the possession of the other Justices but only of Justice Reyes. She added that if logic were followed, then all of the Justices should be investigated because copies of Justice Carpios Reflections were circulated to all. She declared that she was willing to be investigated and that she was volunteering to be investigated. However, she pointed out that the logic of Justice Reyes was misplaced, considering that the documents attached to Biraogos Compliance were allegedly received at the same time. If Biraogo received the documents at the same time and one Justice never took hold of the ponencia as signed, said Justice could not have made the leak to Biraogo. Justice Reyes went on to testify as follows: The Gilbert copy which he submitted to the committee was given to him by Del Rosario. He did not photocopy the Gilbert copy nor provide Biraogo a copy thereof or instruct any of his staff to photocopy the same. The xerox copy of the Gilbert copy attached to the Compliance of Biraogo appeared to be the same as the committees copy because he (Justice Reyes) looked at the initials on each page and found them to be similar. Justice Quisumbing thereupon invited Justice Reyess attention to the cover page of the Gilbert copy which had been submitted to and in custody of the committee (committees copy). Upon perusal thereof, Justice Reyes stated that the cover page of the committees copy did not appear to be the same as the cover page of Biraogos copy. He observed that the cover page of the committees copy showed the agenda date July 29, 2008, and that the Limkaichong case was listed as Item No. 66, whereas the cover page of Biraogos copy showed the agenda date July 15, 2008, and that the same case was listed as Item No. 52. Justice Reyes then qualified his earlier statement and said that he was only referring to those pages of the decision itself which bore his initials, when he spoke of similarity, and said that the cover page did not bear his initials. Justice Corona pointed out, and Justice Reyes confirmed, that page 1 of the committees copy also differed from page 1 of Biraogos copy. Justice Corona pointed that in the committees copy, there were asterisks after the names of Justice Azcuna and Justice Tinga and footnotes that the two were on official leave, whereas no such asterisks and footnotes appeared on page 1 of Biraogos copy. Justice Corona also pointed out and Justice Reyes once again confirmed that there was a slight variance between the initials on page 34 of the committees copy and the initials on page 34 of Biraogos copy. Justice Quisumbing then posed the question whether Justice Reyes would admit that there were at least two sources. At this juncture, Justice Reyes brought out another photocopy (new

copy or Justice Reyess new copy) of the Gilbert copy to which new copy the left top corner of the top cover was stapled a 1x1 piece of thick paper bearing the initials RTR and on the right top corner of the same cover appeared a handwritten notation reading Gilbert copy. Justice Reyes repeatedly stated that his new copy was a facsimile of the committees copy. He pointed out that the initials on page 34 of the new copy and that of the committees copy matched. He concluded, however, that page 34 of Biraogos copy was not a faithful reproduction of the committees copy. Justice Reyes avoided the question of whether he or his staff kept more than one xerox copy of the Gilbert copy that had been signed by majority or 14 members of the Court, saying that he could not say so because he did not personally attend to photocopying of decisions. He stressed that his initials on page 34 of the new copy differed from the initials appearing on page 34 of Biraogos copy. He also pointed out that in Biraogos copy, particularly on page 3, there was a handwritten correction superimposed over the misspelled name of Jerome Paras while no such handwritten correction appeared on page 3 of both the committees copy and the new copy. He added that he did not know who made the handwritten correction in Biraogos copy and that the new copy he was presenting to the committee was furnished to him by the committee. Said copy was allegedly the xerox copy of the Gilbert copy. Justice Reyes professed that he had nothing to do with the leak as he would not leak, authorize, allow, or tolerate any leak of his decision or revised draft. He dispelled any pecuniary profit from such leakage, especially since he was about to retire when the leak happened. He could not, however, say the same of his office staff since he did not want to speculate, so he was giving the committee the broadest latitude in calling any of his staff. Upon Justice Carpio Moraless interrogation, Justice Reyes stated that he found the new copy in his files just the week before the January 22, 2009 hearing. Justice Carpio Morales then invited his attention to the fact that page 1 of the new copy, like page 1 of Biraogos copy, did not contain the footnotes and asterisks appearing in the committees copy. She also noted that the copy of Biraogo and the new copy presented by Justice Reyes matched to a T. Justice Reyes only replied that he did not pay particular attention nor personally attend to the photocopying. Justice Reyes stated that there should only be one copy of the Gilbert copy, but it appeared that he supplied the committee with two apparently different copies (the Gilbert copy and the new copy). Justice Reyes noted that the new copy and Biraogos copy did not match exactly as regards pages 3 and 34. He stressed that there appeared on page 3 of Biraogos copy a handwritten correction over the misspelled name of Jerome Paras while no such correction was made on the new copy. Additionally, on page 34 of Biraogos copy, his initial appeared to have a smudge while on page 34 of the new copy, there was no smudge. When asked to explain why the new copy, which he claimed to have been photocopied from the committees copy, did not match the committees copy on page 1 but matched page 1 of Biraogos copy, Justice Reyes offered no

explanation. Justice Reyes also refused to submit the new copy to the committee (Why should I?) and questioned the committees request that he initial the controversial pages of the new copy. Thus, the committee members decided to affix their signatures on the first five pages of the new copy and then drew a rectangle around their signatures and the date January 22, 2009. The committee then had the new copy photocopied. Justice Corona soon noticed that Justice Reyes was trying to hide the new copy between his files. At that point, Justice Corona pulled out the new copy from Justice Reyess files. Justice Reyes then repeatedly said that he was not submitting it to the committee . The committee proceeded to discuss the other matters contained in Justice Reyess Notes. Justice Reyes at that point then stated that he had not withdrawn his standing motion for inhibition against Justice Carpio Morales, to which Justice Carpio Morales replied that she would remain impartial. Justice Carpio Morales likewise stressed that the committee would decide according to the evidence. Upon being asked by the committee, Justice Reyes said that he could not recall if he was holding the Gilbert copy after the En Banc session and while having lunch. He stated that per standard arrangement, his staff would usually get his folders and bring them to his office. As far as he could recall, before the Court adjourned, the members already knew that many concurred only in the result. He could not recall, however, if the Chief Justice learned about it only at the dining room. Justice Reyes denied having given Atty. Evangelista the instruction to reprint signature page 36 of the Gilbert copy and stated that it must have been Atty. Evangelistas sole decision. What Justice Reyes remembered telling Atty. Evangelista after the En Banc session was that many concurred only in the result and that Justice Chico-Nazario wanted to change her concurrence. Justice Carpio Morales confronted him with certain portions of the December 15, 2008 TSN where he clearly volunteered the information that he was the one who instructed Atty. Evangelista to reprint page 36 which is the second signature page. Justice Reyes replied that maybe Atty. Evangelista was under the mistaken impression that the change of the said page pushed through because, as it turned out, there was no qualification in the concurrence of Justice ChicoNazario. He also insisted that he did not volunteer the information that he was the one who ordered the reprinting of page 36. He contended that he was in fact questioning Atty. Evangelista when the latter said that the instruction came from him. With regard to the re-signing by Justice Nachura, Justice Reyes declared that it was difficult to speculate and rely on inaccurate recollection, especially since several months had passed. Justice Corona replied that the testimonies could not be inaccurate since there were entries in the logbook, showing that Justice Nachura indeed signed in his chambers. Justice Reyes stated that the changing of the original signature page 36 was not carried out and that Atty. Evangelistas recollection of the event was inaccurate. Justice Reyes also stated he could not recall calling Justice Chico-Nazario on the phone after the En Banc session on July 15, 2008.

Justice Reyes stated that Del Rosario was assigned to keep and take care of the circulated drafts and ponencias printed on Gilbert paper, and from time to time Atty. Evangelista would have access to them since the latter was the judicial staff head. Justice Reyess staff members in October were the same until he retired on December 18, 2008. Justice Reyess impression of Biraogos letter was that somebody who had an axe to grind against the Chief Justice or who wanted to discredit him could have done it. Justice Reyes said that he never had any personal interest in the case and argued that the best proof of this was that he did not stick to his original decision after the case was heard on oral arguments on August 26, 2008, just to prove that he was not beholden to any party. Justice Reyes could not offer a straight answer to the question of what his undue interest was in still trying to have the signature of all the Justices after he had taken his lunch and to forward the Gilbert copy and the rollo etc. to the OCJ even after the decision to put the promulgation of the ponencia on hold was arrived at, at lunchtime of July 15, 2008. He simply dismissed the recollections of his staff and preferred to believe Del Rosarios over those of Evangelistas or Manabats. He insisted that he never had the chance to talk to Del Rosario or to Atty. Evangelista right after the En Banc session, and claimed that he never gave the instruction to bring the Gilbert copy to the Office of Justice Nachura. He likewise insisted that the testimony of Atty. Evangelista was incorrect and that he would rather believe Del Rosarios testimony. THE INVESTIGATING COMMITTEES FINDINGS OF FACT From the testimonies of the witnesses, the committee finds the following facts established. On July 15, 2008, even after the Justices had agreed at lunchtime to withhold the promulgation of the Gilbert copy in the Limkaichong case, Justice Reyes, under his misimpression that Justice Nazario had concurred in the result and that she would finally remove such qualification, instructed his Judicial Staff Head, Atty. Evangelista, and Del Rosario to have the signature page 36 (where the names of Justices Nazario, Nachura and three others appeared) reprinted and to bring the Gilbert copy to the Office of Justice Nachura for signature as Justice Nachura, who was not participating in the oral arguments on the case scheduled at 1:30 that afternoon, might be going out. Jean Yabut was tasked by Atty. Evangelista to reprint the second signature page (page 36) on Gilbert paper. The reprinted signature page 36, together with the rest of the pages of the Gilbert copy , was then given by Atty. Evangelista to Del Rosario. Del Rosario, in turn, gave the Gilbert copy, together with the reprinted signature page 36, to Manabat whom he instructed to go to the Office of Justice Nachura for him to affix his signature thereon. Manabat immediately went to the Office of Justice Nachura and handed the Gilbert copy to Fermin Segotier, the receptionist at Justice Nachuras office. As the Gilbert copy was a door-to-

door document, Segotier immediately gave it to Glorivy Nysa Tolentino who recorded it in her logbook. She then brought the Gilbert copy to Justice Nachura. When the reprinted page 36 of the Gilbert copy was brought out from Justice Nachuras chambers and returned to Tolentino, she recorded it in her logbook that it was already signed. The whole process took not more than five minutes. The Gilbert copy was returned to Manabat, who had waited outside the office of Justice Nachura. Manabat then repaired to the chambers of Justice Reyes who inquired from him if Justice Nachura had signed the reprinted page 36 to which he answered in the affirmative . Manabat thereafter handed the Gilbert copy to Del Rosario. When Atty. Evangelista, who was attending the oral arguments on a case scheduled that afternoon, went down the Office of Justice Reyes at about 3:30 p.m., he and/or Del Rosario must have eventually noticed that Justice Nazario did not, after all, qualify her concurrence on the original signature page 36 of the Gilbert copy with the words in the result. Since neither Atty. Evangelista nor Del Rosario was advised by Justice Reyes that the promulgation of the Gilbert copy was on hold, Del Rosario brought the Gilbert copy, together with the rollo, records and diskettes to the OCJ to be promulgated and gave it at 3:30 p.m. to Ramon Gatdula of the OCJ. Gatdula later transmitted the Gilbert copy to the secretary of the Chief Justice. The following day, July 16, 2008, at around 4:00 p.m., Justice Reyes called Del Rosario to his chambers and instructed him to retrieve the Gilbert copy, etc. from the OCJ, informing him for the first time that the promulgation of the ponencia had been put on hold. Around that same time, the OCJ phoned the Office of Justice Reyes and told them to retrieve the ponencia for the same reason. Thus, Del Rosario went to the OCJ and asked for the return of the Gilbert copy . As Gatdula had already forwarded the same to the Chief Justices secretary for the Chief Justices signature, Gatdula retrieved it from the secretary. Del Rosario retrieved all that he submitted the previous day, except the rollo which had, in the meantime, been borrowed by Justice Carpio. Del Rosario then brought the Gilbert copy to Justice Reyes who told him to keep it. Del Rosario informed Atty. Evangelista the following day, July 17, 2008, that the promulgation of the Gilbert copy was on hold. After Atty. Evangelista verified the matter from Justice Reyes, he (Atty. Evangelista) told Del Rosario that the case would be called again on July 29, 2008. Del Rosario made a note in his logbook to that effect. On July 25, 2008, the Office of Justice Reyes received the En Banc agenda for July 29, 2008 where the Limkaichong case was listed as Item No. 66. A new cover page reflecting the case as Item No. 66 was thus prepared and attached to the Gilbert copy bearing only 14 signatures. After the Gilbert copy was retrieved from the OCJ on July 16, 2008, it remained in the sole custody of Del Rosario until December 15, 2008, the initial hearing conducted by the investigating committee. The Gilbert copy remained inside his

unlocked drawer, in a brown envelope, which he had sealed with the blue and white seal used by all Justices. He opened it only on December 10, 2008, after Justice Reyes informed his staff that there was a leak of the ponencia. When news of Biraogos conduct of a press conference on December 9, 2008 bearing on the leakage came out, Justice Reyes immediately called his legal staff and Del Rosario to a meeting and asked them if they knew anything about the leakage. He called for a second meeting among Atty. Evangelista, Manabat and Del Rosario on December 15, 2008, before the hearing by the investigating committee took place in the afternoon of that day. Justice Reyes likewise had a one-on-one talk with Del Rosario and asked him if a copy of Justice Carpios Reflections was attached to the Gilbert copy and related documents when they were sent to the OCJ, to which he (Del Rosario) answered in the negative. EVALUATION The committee finds that the photocopying of the Gilbert copy occurred between July 15, 2008, before it was brought to the OCJ or after it was retrieved on July 16, 2008 from the OCJ, and July 25, 2008, when the Office of Justice Reyes caused the preparation of the new cover page of the Gilbert copy to reflect that it was agendaed as Item No. 66 in the July 29, 2008 En Banc session, because the cover page of the photocopy in the possession of Biraogo, as well as the cover page of Justice Reyess new copy, still bore the agenda date July 15, 2008 and Item No. 52. The committee likewise finds that the leakage was intentionally done. It was not the result of a copy being misplaced and inadvertently picked up by Biraogo or someone in his behalf. The committee notes that none of the offices to which the Gilbert copy was brought (OCJ and the Office of Justice Nachura) and which acquired control over it photocopied ponencias in Gilbert form and released photocopies thereof to party litigants. In any event, as earlier reflected, page 1 of the Gilbert copy that was sent to the OCJ and Justice Nachuras Office and page 1 of Biraogos photocopy differ. To reiterate, the Gilbert copy bearing the signatures of 14 Justices was photocopied and that a copy thereof was intentionally leaked directly or indirectly to Biraogo. As will be discussed below, the committee FINDS that the leak came from the Office of Justice Reyes. It bears reiterating that the leak did not come from the OCJ even if the Gilbert copy stayed therein from 3:30 p.m. on July 15, 2008 up to 4:00 p.m. on July 16, 2008. This is clear from the fact that page 1 of the copy in Biraogos possession differs from page 1 of the Gilbert copy which was forwarded to the OCJ. Thus, on page 1 of the Gilbert copy which contains the names of the Justices of the Court, there appear asterisks after the names of Justice Adolfo S. Azcuna and Justice Dante O. Tinga. These asterisks have corresponding footnotes stating that Justice Azcuna was on official leave per Special Order No. 510 dated July 15, 2008 and Justice Tinga was likewise on official leave per Special Order No. 512 dated July 16, 2008. In

contrast, page 1 of Biraogos copy and Justice Reyess new copy, glaringly contain no such asterisks and footnotes, which indicates that page 1 of Biraogos copy was photocopied from page 1 of the draft prepared by Justice Reyes before it was finalized on Gilbert paper. The leak also could not have come from the offices of the other associate justices, contrary to Justice Reyess insinuation. Justice Reyes insinuated that because all the Justices were furnished with advance copies of the draft ponencia before the session of July 15, 2008, anyone from those offices could have leaked the decision. An examination of the copy in Biraogos possession readily shows that every page thereof pages 1 to 36 contained Justice Reyess authenticating initials while none of the advance copies furnished to the Justices was similarly authenticated. Advance copies of a draft given to the justices as a working basis for deliberations are not initialed by the justice who prepares it. And they do not contain the signature of any of the Justices, except the one who prepared the draft, precisely because the Justices have yet to go over it and deliberate on it. As standard procedure, it is only after a draft decision has been adopted by the Court that it is finalized-printed on Gilbert paper and every page thereof is authenticated by the ponente, and circulated for signature by the other Justices. It need not be underlined that there was no opportunity for anyone from the offices of the Associate Justices to photocopy the ponencia as none of said offices acquired possession of the document, except the Office of Justice Reyes and the Office of Justice Nachura. But based on testimony, the unpromulgated ponencia stayed in the Office of Justice Nachura only for less than five minutes, which did not suffice for it to be signed by Justice Nachura and to be photocopied. Again, and in any event, page 1 of the photocopy in Biraogos possession does not match the same page of the Gilbert copy. Furthermore, except for Justice Reyes, the Associate Justices took hold of the Gilbert copy only briefly when they signed it at the En Banc conference room. At no other time did any of them hold the document long enough to photocopy it. Pursuant to standard procedure, only the ponente, Justice Reyes in this case, and his staff, took custody of the ponencia bearing the signatures of 14 Justices before it was sent to the OCJ. But who from the Office of Justice Reyes leaked the unpromulgated ponencia? While the evidence shows that the chain of custody could not rule out the possibility that the Gilbert copy was photocopied by Del Rosario who had control and possession of it, and while there is no direct evidence as to the identity of the perpetrator of the leakage, the committee FINDS that based on the circumstantial evidence reflected above, particularly the evident undue interest of Justice Reyes to circulate a draft ponencia of the case soonest even before the memoranda of all the parties fell due, and to withhold the information to Atty. Evangelista and Del Rosario that the promulgation of the ponencia was put on hold and, instead, allow the immediate promulgation after lunch despite his admission that the decision

to hold the promulgation was arrived at at lunchtime, it was Justice Reyes himself who leaked a photocopy thereof. Recall that the Court gave due course to the petition on April 8, 2008 and the first memorandum was filed by the Office of the Solicitor General only on June 16, 2008. The other parties, namely, Olivia Paras, Speaker Nograles, et al., and Biraogo subsequently filed their respective memoranda only on July 1, 2, and 24, 2008. Even before the En Banc session of June 10, 2008, however, Justice Reyes had already circulated a draft decision. Further, still later or on June 12, 2008, Justice Reyes circulated, via transmittal letter of even date printed on his memo pad and signed by him, a Revised Draft, copy of which transmittal letter, as well as the Revised Draft, also came into the possession of Biraogo (Annex B to Biraogos Compliance). Furthermore, even after the Justices had, at lunchtime of July 15, 2008, unanimously decided that the promulgation of the Gilbert copy would be put on hold--and this was, it bears repeating, admitted by Justice Reyes--, Justice Reyes, after partaking lunch at the dining room and before 1:00 p.m., instead of advising his Chief of Staff Atty. Evangelista and Del Rosario that the promulgation was put on hold, still instructed them to reprint the second signature page (page 36) and to have the reprinted page immediately brought to the Office of Justice Nachura for signature; and before Justice Reyes left for the session hall for the oral arguments of that case scheduled at 1:30 p.m. that day, Justice Reyes still followed up the case by asking Manabat if Justice Nachura had already signed the Gilbert copy. When confronted with the incontrovertible evidence of his undue interest in the case and haste in having the Gilbert copy promulgated, Justice Reyes was notably evasive. On January 16, 2009, Justice Carpio Morales asked Justice Reyes if he would admit that he prepared a draft of the decision even before the first memorandum was submitted on June 16, 2008. Justice Reyes stated that he could not admit that fact. Such fact is documented, however, and it would not have escaped him as the records of the Limkaichong case were with him and yet he already prepared and caused the circulation of a draft of the decision on June 12, 2008. Justice Reyes also gave conflicting accounts on when he gave the Gilbert copy to Del Rosario after the En Banc session of July 15, 2008 was adjourned. During the proceedings of the committee on December 15, 2008, Justice Reyes categorically stated that pursuant to standard operating procedures, he gave the signed Gilbert copy to Del Rosario after the Chief Justice noted that seven Justices had concurred in the result. It bears recalling that the Chief Justice confirmed noting such fact during lunchtime. However, the following day, during the December 16, 2008 proceedings, Justice Reyes implied that pursuant to standard operating procedures, his staff got his folders including the Gilbert copy right after the En Banc session. Hence, so he reasoned, as the agreement to put on hold the promulgation of the Gilbert copy and to hold oral arguments on the case

was arrived at only after lunch which followed the adjournment of the En Banc session, his staff did not know about such agreement. But even Del Rosario, whose testimony he credits more than any of the other members of his staff, categorically stated that Justice Reyes gave him the Gilbert copy after he (Justice Reyes) had taken his lunch and while he (Del Rosario), Justice Reyes and Atty. Evangelista were, before 1:00 p.m., on their way to Justice Reyess office, and that, at that instant, Justice Reyes instructed Atty. Evangelista to have the signature page 36 reprinted and have Justice Nachura (who was not participating in the oral arguments scheduled that afternoon) sign. During the January 22, 2009 hearing, when asked to explain why the top cover of the new copy which he brought with him and which he claimed to have been photocopied from the committees copy, did not match the top cover of the committees copy (or the original Gilbert copy) but matched the top cover of Biraogos copy, Justice Reyes offered no explanation. Neither did he account for the other dissimilarities between page 1 of his new copy and the same page 1 of Biraogo on one hand, and page 1 of the Gilbert copy , viz: page 1 of the new copy, like page 1 of Biraogos copy, does not have asterisks after the names of Justices Tinga and Azcuna and the corresponding footnotes, which the Gilbert copy has. Justice Reyes, despite his professed desire to bring out the truth, refused to submit his new copy to the committee and questioned the committees request that he place his initials on the questioned pages of his new copy. Later, while the committee was discussing other points in his Notes, Justice Reyes tried to hide his new copy. Justice Corona had to pry it out of Justice Reyess files. As Justice Reyes repeatedly said that he was not submitting his new copy to the committee (Why should I), the committee members were prompted to photocopy his new copy, but only after they affixed their signatures and date (January 22, 2009) on the first 5 pages thereof. To the members of the committee, the foregoing proven facts and circumstances constitute more than substantial evidence which reasonably points to Justice Reyes, despite his protestations of innocence, as THE source of the leak. He must, therefore, be held liable for GRAVE MISCONDUCT.

Effect of Justice Reyess Retirement The subsequent retirement of a judge or any judicial officer from the service does not preclude the finding of any administrative liability to which he is answerable. A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case. The instant case is not moot and academic, despite Justice Reyess retirement. Even if the most severe of administrative sanctions may no longer be imposed, there are other penalties which may be imposed if one is later found

guilty of the administrative offenses charged, including the disqualification to hold any government office and the forfeiture of benefits. The Court retains jurisdiction either to pronounce a respondent official innocent of the charges or declare him/her guilty thereof. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications. For, what remedy would the people have against a civil servant who resorts to wrongful and illegal conduct during his/her last days in office? What would prevent a corrupt and unscrupulous government employee from committing abuses and other condemnable acts knowing fully well that he/she would soon be beyond the pale of the law and immune from all administrative penalties? If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, a respondent official merits vindication of his/her name and integrity as he leaves the government which he/she served well and faithfully; if guilty, he/she deserves to receive the corresponding censure and a penalty proper and imposable under the situation. The Court cannot over-emphasize the importance of the task of preserving the confidentiality and integrity of court records. A number of rules and internal procedures are in place to ensure the observance of this task by court personnel. The New Code of Judicial Conduct provides that confidential information acquired by justices and judges in their judicial capacity shall not be used or disclosed for any other purpose not related to their judicial duties. The Code of Conduct for Court Personnel likewise devotes one whole canon on confidentiality, to wit:

decision, resolution or order is made public. SEC. 2. Confidential information available to specific individuals by reason of statute, court rule or administrative policy shall be disclosed only by persons authorized to do so. SEC. 3. Unless expressly authorized by the designated authority, court personnel shall not disclose confidential information given by litigants, witnesses or attorneys to justices, judges or any other person. SEC. 4. Former court personnel shall not disclose confidential information acquired by them during their employment in the Judiciary when disclosed by current court personnel of the same information would constitute a breach of confidentiality. Any disclosure in violation of this provisions shall constitute indirect contempt of court. (Emphasis and underscoring supplied.) Ineluctably, any release of a copy to the public, or to the parties, of an unpromulgated ponencia infringes on the confidential internal deliberations of the Court. It is settled that the internal deliberations of the Court are confidential. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise judicial power. In Mirasol v. De La Torre, Jr., the Court stated that [c]ourt documents are confidential documents. They must not be taken out of the court without proper authority and without the necessary safeguards to ensure their confidentiality and integrity. Thus, the Court found the clerk of court guilty of gross misconduct. Moreover, the case enunciates that acts of gross misconduct destroy the good image of the judiciary so the Court cannot countenance them nor allow the perpetrators to remain in office. This same pronouncement was reiterated in Betguen v. Masangcay. Though both cases involve indiscretions of clerks of court, it is but logical that a higher standard of care be imposed upon magistrates of the Court. PAGCOR v. Rilloza, in fact, commands persons who routinely handle confidential matters to be confidential employees. They are thus expected to be more careful than an ordinary employee in their day to day business. They are reposed such trust and confidence that a breach of their duty would mean breach of trust. As applied to the case of Justice Reyes, the breach of duty amounts to breach of public trust as the committee believes that the leak was motivated by self-interest. The fact that Justice Reyes was not formally charged is of no moment. It is settled that under the doctrine of res ipsa loquitur, the Court may impose its authority upon erring judges whose actuations, on their face, would show gross incompetence, ignorance of the law or misconduct.

SECTION 1. Court personnel shall not disclose to any unauthorized person any confidential information acquired by them while employed in the judiciary, whether such information came from authorized or unauthorized sources. Confidential information means information not yet made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any justice or judge relating to pending cases, including notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers. The notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers that a justice or judge uses in preparing a decision, resolution or order shall remain confidential even after the

In People v. Valenzuela, which deals with the administrative aspect of a case brought on certiorari, the Court dispensed with the conduct of further hearings under the principle of res ipsa loquitur and proceeded to consider critical factors in deducing malice and bad faith on the part of the judge, after it did not accept at face value the judges mere denial. In that case, the judge ordered the return of the peso equivalent of the foreign currency to the accused despite its forfeiture as dutiable goods and even after the finding that the accused had nothing to do with the mailing thereof. In Cathay Pacific Airways, Ltd. v. Romillo, Jr., where the Court took into account glaring circumstances in the proceedings of the case in concluding that the judge acted with bad faith, the judge was similarly found guilty of grave and serious misconduct when he unjustly declared the defendant in default and awarded outrageously exorbitant damages. l Prudential Bank v. Castro was an administrative case spawned by a partys complaint, wherein the Court, in light of the surrounding circumstances, found that the judge committed serious and grave misfeasance because the issuance of the orders and ill-conceived summary judgment showed the judges partiality to, or confabulation with the plaintiff and its lawyers. In Consolidated Bank and Trust Corporation v. Capistrano , the Court proceeded in adjudging the attendant circumstances as tainted with bad faith and questionable integrity to call for the exercise of the Courts disciplinary powers over members of the judiciary. In that case, the Court found the submissions of the judge unacceptable and clearly inadequate to overcome the cumulative effect of the highly questionable actuations taking cognizance of a claim for damages arising from an attachment, instead of having it litigated in the same action where the writ was issued as evincing gross ignorance of the law and active bias or partiality. The Court, in Cruz v. Yaneza, perceived the judges persistent pattern of approving bail bonds and issuing release orders beyond its territorial jurisdiction as evincing a modus operandi that flagrantly flaunts fundamental rules. In De Los Santos v. Magsino, the Court again applied the doctrine of res ipsa loquitur when a judge irregularly approved a bail bond and issued a release order of an accused whose case was pending in another province, in palpable disregard and gross ignorance of the procedural law on bail. The principle was also applied to discipline court personnel and suspend members of the Bar from the practice of law. The Court, in Office of the Court Administrator v. Pardo, found the clerk of court guilty of gross discourtesy in the course of official duties when he failed to accord respect for the person and rights of a judge as can be gleaned from a mere reading of his letter to the Executive Judge. In Sy v. Moncupa, the Court found the evidence against the clerk for malversation of public funds eloquently speaks of her criminal misdeed to

justify the application of the doctrine of res ipsa loquitur. The clerk admitted the shortage in the court funds in her custody and pleaded for time to pay the amount she had failed to account for. In maintaining an earlier Resolution, the Court, in In re Wenceslao Laureta, also declared that nothing more was needed to be said or proven and the necessity to conduct any further evidentiary hearing was obviated. In that case, the Court found that the letters and charges leveled against the Justices were, of themselves and by themselves, malicious and contemptuous, and undermined the independence of the judiciary. Meanwhile, in Emiliano Court Townhouses Homeowners Association v. Dioneda, it was held that it was reasonable to conclude that under the doctrine of res ipsa loquitur, the respondent committed an infringement of ethical standards by his act of receiving money as acceptance fee for legal services in a case and subsequently failing to render such service. The Court found the respondent liable for disloyalty to his client and inexcusable negligence in legal matters entrusted to him. The Court, in Dizon, clarified the doctrine of res ipsa loquitur, viz: In these res ipsa loquitur resolutions, there was on the face of the assailed decisions, an inexplicable grave error bereft of any redeeming feature, a patent railroading of a case to bring about an unjust decision, or a manifestly deliberate intent to wreak an injustice against a hapless party. The facts themselves, previously proven or admitted, were of such a character as to give rise to a strong inference that evil intent was present. Such intent, in short, was clearly deducible from what was already of record. The res ipsa loquitur doctrine does not except or dispense with the necessity of proving the facts on which the inference of evil intent is based. It merely expresses the clearly sound and reasonable conclusion that when such facts are admitted or are already shown by the record, and no credible explanation that would negative the strong inference of evil intent is forthcoming, no further hearing to establish them to support a judgment as to the culpability of a respondent is necessary. (Underscoring and emphasis supplied.) The apparent toning down of the application of the res ipsa loquitur rule was further amplified in at least two cases. In Louis Vuitton S.A. v. Villanueva, the Court ruled that the doctrine of res ipsa loquitur does not apply to cases of knowingly rendering a manifestly unjust judgment, and even if the doctrine is appreciable, complainant still has to present proof of malice or bad faith. Then came Fernandez v. Verzola, where it was held that failure to substantiate a claim of corruption and bribery and mere reliance on conjectures and suppositions cannot sustain an administrative complaint. In dismissing the

complaint, the Court rejected as untenable the reasoning that the decision itself is evidence of corruption per doctrine of res ipsa loquitur. It upheld the rule that rendering an erroneous or baseless judgment, in itself, is not sufficient to justify the judges dismissal from the service. The supposed tempering of the principle of res ipsa loquitur in Dizon only bolstered and solidified the application of the doctrine in cases not only of gross negligence but of serious misconduct as well, since it speaks of inference of evil intent. As explained in Louis Vuitton, the familiar rule in administrative cases is that the acts of a judge in his judicial capacity are not subject to disciplinary action, and that he cannot be subjected to civil, criminal or administrative liability for any of his official acts, no matter how erroneous, as long as he acts in good faith. The rule adds that the proper remedy is via judicial recourse and not through an administrative action. It must be pointed out that Louis Vuitton involves gross ignorance of the law and/or knowingly rendering an unjust judgment. In cases of leakage or breach of confidentiality, however, the familiar rule obviously does not apply. While the injured party is the Court itself, there is no judicial remedy available to undo the disclosure. Moreover, the premature disclosure does not spring from the four corners of the assailed decision or resolution nor can it gleaned on the face of the issuance itself. Indeed, one need not dwell on the substance of the decision since that in itself is inherently insufficient. In unearthing the misdeed, it becomes not only desirable but also necessary to trace the attendant circumstances, apparent pattern and critical factors surrounding the entire scenario. In pronounced: Macalintal v. Teh, the Court

intent is based. It merely expresses that absent a credible explanation, it is clearly sound and reasonable to conclude a strong inference of evil intent on the basis of facts duly admitted or shown by the record. In fine, jurisprudence allows the reception of circumstantial evidence to prove not only gross negligence but also serious misconduct. Justice Reyes is Likewise Liable for Violating his Lawyers Oath and the Code of Professional Responsibility For leaking a confidential internal document of the En Banc, the committee likewise finds Justice Reyes administratively liable for GROSS MISCONDUCT for violating his lawyers oath and the Code of Professional Responsibility, for which he may be disbarred or suspended per Section 27, Rule 138 of the Rules of Court. Canon 1 of the Code of Professional Responsibility requires a lawyer to uphold the Constitution, obey the laws of the land and promote respect for law and legal processes. It is likewise provided in Rule 1.01 and 1.02 of the said canon that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct and that a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Here, the act of Justice Reyes not only violated the New Code of Judicial Conduct for the Philippine Judiciary, the Code of Judicial Conduct and the Canons of Judicial Ethics, it also infringed on the internal deliberations of the Court and impeded and degraded the administration of justice. The act is rendered all the more pernicious considering that it was committed by no less than a justice of the Supreme Court who was supposed to serve as example to the bench and bar. That Justice Reyes was an impeachable officer when the investigation started is of no moment. The rule prohibiting the institution of disbarment proceedings against an impeachable officer who is required by the Constitution to be a member of the bar as a qualification in office applies only during his or her tenure and does not create immunity from liability for possibly criminal acts or for alleged violations of the Code of Judicial Conduct or other supposed violations. Once the said impeachable officer is no longer in office because of his removal, resignation, retirement or permanent disability, the Court may proceed against him or her and impose the corresponding sanctions for misconduct committed during his tenure, pursuant to the Courts power of administrative supervision over members of the bar. Provided that the requirements of due process are met , the Court may penalize retired members of the Judiciary for misconduct committed during their incumbency. Thus, in Caada v. Suerte, this Court ordered the disbarment of a retired judge for misconduct committed during his incumbency as a judge. However, pernicious as Justice Reyess infractions may have been, the committee finds the imposition of the supreme penalty of disbarment unwarranted. In the determination of the imposable disciplinary sanction against an erring lawyer, the Court takes into account the primary purpose of disciplinary proceedings, which is to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable, and reliable men in whom courts and clients may repose confidence. While the

When the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and title he holds or he is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. In both instances, the judge's dismissal is in order. After all, faith in the administration of justice exists only if every partylitigant is assured that occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles. (Underscoring supplied.) The same norm equally applies in the breach of the basic and essential rule of confidentiality that, as described in one case, [a]ll conclusions and judgments of the Court, be they e n banc or by Division, are arrived at only after deliberation [and c]ourt personnel are not in a position to know the voting in any case because all deliberations are held behind closed doors without any one of them being present. As Dizon declared, the doctrine of res ipsa loquitur does not dispense with the necessity of proving the facts on which the inference of evil

assessment of what sanction may be imposed is primarily addressed to the Courts sound discretion, the sanction should neither be arbitrary or despotic, nor motivated by personal animosity or prejudice. Rather, it should ever be controlled by the imperative need to scrupulously guard the purity and independence of the bar. Thus, the supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court and member of the bar. Under the circumstances of this case, the committee finds the penalty of indefinite suspension from the practice of law sufficient and proper.

part of all those involved in the administration of justice which would violate the norm of public accountability and diminish the peoples faith in the judiciary. Under Section 23, Rule XIV of the Omnibus Civil Service Rules and Regulations, (simple) neglect of duty is punishable by suspension of one month and one day to six months for the first offense. Under Sec. 19, Rule XIV of the same Rules, the penalty of fine (instead of suspension) may also be imposed in the alternative. Following the Court's ruling in several cases involving (simple) neglect of duty, we find the penalty of fine on Atty. Evangelista and Del Rosario in the amount of P10,000 and P5,000, respectively, just and reasonable. RECOMMENDATIONS

Liability of Atty. Rosendo B. Evangelista The Committee finds that Atty. Evangelista, Justice Reyes Judicial Staff Head, was remiss in his duties, which includes the supervision of the operations of the office, particularly with respect to the promulgation of decisions. While it is incumbent upon him to devise ways and means to secure the integrity of confidential documents, his actuations reflected above evinced a disregard of a duty resulting from carelessness or indifference. Atty. Evangelista was admittedly unmindful of the responsible safekeeping of draft ponencias in an unlocked drawer of a member of the staff. He failed to make sure that the unused portion of confidential documents like the second signatory page of the ponencia in Gilbert form had been properly disposed of or shredded. He was not on top of things that concerned the promulgation of ponencias, for he failed to ascertain the status and procedural implication of an on hold order after having been apprised thereof by his subordinate, Del Rosario, on July 17, 2008. Despite his awareness that the Limkaichong case would eventually be called again, he admitted that he was not privy to the preparation of the copy of the ponencia for the subsequent session on July 29, 2008. With these findings, the Court finds him liable for SIMPLE NEGLECT OF DUTY.

IN VIEW OF THE FOREGOING, the Investigating Committee respectfully recommends that (1) Justice Ruben T. Reyes (Ret.) be found liable for GROSS MISCONDUCT for violating his oath as a member of the Bar and the Code of Professional Responsibility and be meted the penalty of INDEFINITE SUSPENSION as a member of the Bar; (2) Justice Ruben T. Reyes (Ret.) also be found liable for GRAVE MISCONDUCT for leaking a confidential internal document of the Court and be FINED in the amount of P500,000, to be charged against his retirement benefits; and (3) Atty. Rosendo B. Evangelista and Armando Del Rosario be held liable for SIMPLE NEGLECT OF DUTY and be FINED in the amount of P10,000 and P5,000, respectively. RESPECTFULLY SUBMITTED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 110571 October 7, 1994 FIRST LEPANTO CERAMICS, INC., petitioner, vs. THE COURT OF APPEALS and MARIWASA MANUFACTURING, INC., respondents. Castillo, Laman. Tan & Pantaleon for petitioner. De Borja, Medi, Aldea, Ata, Bello, Guevarra & Serapio for private respondent. RESOLUTION MENDOZA, J.:

Liability of Armando Del Rosario The committee likewise finds Del Rosario administratively liable for failing to exercise the required degree of care in the custody of the Gilbert copy. Del Rosario admittedly kept the Gilbert copy in an unlocked drawer from July 16, 2008 to December 10, 2008 when he should have known that, by the nature of the document in his custody, he should have kept it more securely. His carelessness renders him administratively liable for SIMPLE NEGLECT OF DUTY, defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference. Time and again, the Court has emphasized the heavy burden and responsibility which court officials and employees are mandated to carry. They are constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. The Court will never countenance any conduct, act or omission on the

This is a motion for the reconsideration of the decision of the Second Division 1 sustaining the jurisdiction of the Court of Appeals over appeals from the decisions of the Board of Investments and, consequently, dismissing the petition for certiorari and prohibition filed by petitioner First Lepanto Ceramics, Inc. Because of the importance of the question raised, the Court en banc agreed to accept the matter for consideration. Petitioner's contention is that Circular No. 1-91 cannot be deemed to have superseded art. 82 of the Omnibus Investments Code of 1987 (E.O. No. 226) because the Code, which President Aquino promulgated in the exercise of legislative authority, is in the nature of a substantive act of Congress defining the jurisdiction of courts pursuant to Art. VIII, 2 of the Constitution, while the circular is a rule of procedure which this Court promulgated pursuant to its rule-making power under Art. VIII 5(5). Petitioner questions the holding of the Second Division that although the right to appeal granted by art. 82 of the Code is a substantive right which cannot be modified by a rule of procedure, nonetheless, questions concerning where and in what manner the appeal can be brought are only matters of procedure which this Court has the power to regulate. Even assuming that there is merit in petitioner's contention, however, the result reached in the main decision is nonetheless, correct from another point of view. Judicial review of the decisions and final orders of the BOI was originally provided for in the Omnibus Investments Code of 1981 2 (P.D. No. 1789), Art. 78 of which stated: Art. 78. Judicial Relief . All orders or decisions of the Board in cases involving the provisions of this Code shall immediately be executory. No appeal from the order or decision of the Board by the party adversely affected shall stay such order or decision: Provided, That all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision. Art. 78 was thereafter amended by B.P. Blg. 129, by granting in 9 thereof exclusive appellate jurisdiction to the then Intermediate Appellate Court (now the Court of Appeals) over the decisions and final orders of quasi-judicial agencies. When the Omnibus Investments Code of 1987 (E.O. No. 226) was promulgated on July 17, 1987, the right to appeal from the decisions and final orders of the BOI to the Supreme Court was again granted. Thus, the present Code provides: Art. 82. Judicial Relief . All orders or decisions of the Board in cases involving the provisions of this Code shall immediately be executory. No appeal from the order or decision of the Board by the party adversely affected shall stay such order or decision: Provided, That all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision. By then, however, the present Constitution had taken effect. 4 The Constitution now provides in Art. VI, 30 that "No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence." This provision is intended to give the Supreme Court a measure of control over cases placed under its appellate jurisdiction. For the indiscriminate enactment of legislation enlarging its appellate jurisdiction can unnecessarily burden the Court and thereby undermine its essential function of expounding the law in its most profound national aspects. Now, art. 82 of the 1987 Omnibus Investments Code, by providing for direct appeals to the Supreme Court from the decisions and final
3

orders of the BOI, increases the appellate jurisdiction of this Court. Since it was enacted without the advice and concurrence of this Court, this provision never became effective, with the result that it can never be deemed to have amended BP Blg. 129, 9. Consequently, the authority of the Court of Appeals to decide cases appealed to it from the BOI must be deemed to have been conferred by B.P. Blg. 129, 9, to be exercised by it in accordance with the procedure prescribed by Circular No. 1-91. Indeed, there is no reason why decisions and final orders of the BOI must be directly appealed to this Court. As already noted in the main decision in this case, the purpose of 9 of B.P. Blg. 129 is to provide uniform appeals to the Court of Appeals from the decisions and final orders of all quasi-judicial agencies, with the exception only of those issued under the Labor Code and those rendered by the Central Board of Assessment Appeals. It is, therefore, regrettable that in the adoption of the Omnibus Investments Code of 1987 the advice and concurrence of the Supreme Court, as required by the Constitution, had not been obtained in providing for the appeal of the decisions and final orders of the BOI directly to the Supreme Court. WHEREFORE, the motion for reconsideration is DENIED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 96298 May 14, 1991 RENATO M. LAPINID, petitioner, vs. CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY, respondents. Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner. Adolpho M. Guerzon for J. Junsay, Jr. Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Civil Service Commission.

CRUZ, J.:p The issue raised in this case has been categorically resolved in a long line of cases that should have since guided the policies and actions of the respondent Civil Service Commission. Disregard of our consistent ruling on this matter has needlessly imposed on the valuable time of the Court and indeed borders on disrespect for the highest tribunal. We state at the outset that this conduct can no longer be countenanced. Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respondent Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto. On June 26, 1989, complaining that the

PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. In a resolution dated February 14, 1990, the Commission disposed as follows: After a careful review of the records of the case, the Commission finds the appeal meritorious. In the comparative evaluation sheets, the parties were evaluated according to the following criteria, namely: eligibility; education; work experience; productivity/performance/ attendance; integrity; initiative/leadership; and physical characteristics/personality traits. The results of the evaluation are as follows: JUNSAY, Juanito 79.5 VILLEGAS, Benjamin 79 LAPINID, Renato 75 DULFO, Antonio 78 MARIANO, Eleuterio 79 FLORES, Nestor 80 DE GUZMAN, Alfonso 80 VER, Cesar 80 It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and Dulfo (78). Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for appointment to any position commensurate and suitable to their qualifications, and that the Commission be notified within ten (10) days of the implementation hereof. SO ORDERED. Upon learning of the said resolution, Lapinid, 7who claimed he had not been informed of the appeal and had not been heard thereon, filed a motion for reconsideration on March 19, 1990. This was denied on May 25, 1990. The Philippine Ports Authority also filed its own motion for reconsideration on June 19, 1990, which was denied on August 17, 1990. A second motion for reconsideration filed on September 14, 1990, based on the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on October 19, 1990. When the petitioner came to this Court on December 13, 1990, we resolved to require Comments from the respondents and in the meantime issued a temporary restraining order. The Solicitor General took a stand against the Civil Service Commission which, at his suggestion, was allowed to file its own Comment. The petitioner filed a Reply. The private respondent's Comment was dispensed with when it was not filed within the prescribed period.

We see no reason to deviate from our consistent ruling on the issue before us. In Luego v. Civil Service Commission, 1 this Court declared: The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter? xxx xxx xxx Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. xxx xxx xxx Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. The same ruling has been affirmed, in practically the same language as Luego, in Central Bank v. Civil Service Commission, 171 SCRA 744; Santiago v. Civil Service Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022 and G.R. No. 85804, March 9, 1989, En Banc, Minute Resolution; Galura v. Civil Service Commission, G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No. 85941, June 15, 1989, En Banc, Minute Resolution; Remigio v. Chairman, Civil Service Commission, G.R. No. 86324, July 6, 1989, En Banc, Minute Resolution; Aurora Macacua v. Civil Service Commission, G.R. No. 91520, July 31, 1990, En Banc, Minute Resolution; Abdulwahab A. Bayao v. Civil Service Commission, G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v. Civil Service Commission, G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v. The Hon. Civil Service Commission, et al., G.R. No. 90477, September 13, 1990, En Banc, Minute Resolution; Elenito Lim v. Civil Service Commission, et al., G.R. No. 87145, October 11, 1990, En Banc, Minute Resolution; Teologo v. Civil Service Commission , G.R. No. 92103, November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976, November 15, 1990. Only recently, in Gaspar v. Court of Appeals 2 this Court said: The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be

qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the position in controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment; it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority. xxx xxx xxx The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the demands of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard. It is therefore incomprehensible to the Court why, despite these definitive pronouncements, the Civil Service Commission has seen fit to ignore, if not defy, the clear mandate of the Court. We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointeetaking into account the totality of his qualifications, including those abstract qualities that define his personalityis the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. Commenting on the limits of the powers of the public respondent, Luego declared: It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided

therein that the Commission shall have inter alia the power to: 9(h) Approve all appointments, whether original or promotional, to positions in the civil service , except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (Emphasis supplied) However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts onor as the Decree says, "approves" or "disapproves'an appointment made by the proper authorities. The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service Commission not to understand them. The bench does; the bar does; and we see no reason why the Civil Service Commission does not. If it will not, then that is an entirely different matter and shall be treated accordingly. We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. We must therefore make the following injunctions which the Commission must note well and follow strictly. Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner. While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them. The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril. WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service Commission dated February 14, 1990, May 25, 1990, August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13, 1990, is made PERMANENT. No costs.

SO ORDERED. EN BANC [G.R. No. 101783. January 23, 2002] MANILA ELECTRIC COMPANY, petitioner, vs. PHILIPPINE CONSUMERS FOUNDATION, INC., EDGARDO S. ISIP, HON. JUDGE MANUEL M. CALANOG, JR., and HON. JUDGE TIRSO D'C. VELASCO, respondents. DECISION SANDOVAL-GUTIERREZ, J.: Interest republicae ut sit finis litium - it is to the interest of the public that there should be an end to litigation by the same parties and their privies over a subject fully and fairly adjudicated. From this overwhelming concern springs the doctrine of res judicata an obvious rule of reason according stability to judgments. Challenged in this petition for review on certiorari are the a) Decision in Civil Case No. Q-89-3659 dated January 16, 1991 of the Regional Trial Court, Branch 76, Quezon City; and b) its Order dated September 10, 1991 denying the motion for reconsideration of the said Decision. The pertinent facts are: On September 11, 1974, former President Ferdinand E. Marcos, with the objective of enabling the grantees of electric franchises to reduce their rates "within the reach of consumers", promulgated Presidential Decree No. 551 providing for the reduction from 5% to 2% of the franchise tax paid by electric companies, thus: SECTION 1. Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax payable by all grantees of franchises to generate, distribute and sell electric current for light, heat and power shall be two (2%) of their gross receipts received from the sale of electric current and from transactions incident to the generation, distribution and sale of electric current. On February 5, 1982, the Philippine Consumers Foundation, Inc., (PCFI) filed with the Board of Energy (BOE) a "Petition for Specific Performance, Damages and Violation of P. D. No. 551" against the Manila Electric Company (Meralco), docketed as BOE Case No. 82-198. PCFI sought for the immediate refund by Meralco to its customers of all the savings it realized under P.D. No. 551, through the reduction of its franchise tax from 5% to 2%, with interest at the legal rate; and for the payment of damages and a fine in the amount of P50, 000.00 for violating P.D. 551. It moored its petition on Section 4 of P.D. No. 551 which provides: Sec. 4. All the savings realized by electric franchise holders from the reduction of the franchise tax under Section 1 and tariff reductions and tax credits under Sections 2 and 3, shall be passed on to the ultimate consumer. The Secretary of Finance shall promulgate rules and regulations and devise a reporting systems to carry out the provisions of this Decree. In its answer to the petition, Meralco alleged that it was duly authorized by the BOE in its Order dated March 10, 1980 in BOE Case No. 79-692 to retain the disputed savings; and that the said Order had long become final. On November 25, 1982, the BOE issued its Decision dismissing PCFI's petition, declaring that Meralco was indeed authorized by the BOE, in BOE Case No. 79-692, to retain the disputed savings under P.D. 551, thus: It is at once evident from the foregoing controlling facts and circumstances, particularly the Order of this Board dated March 10,

1980, as confirmed by the reply-letter dated March 3, 1981, that Meralco has been duly authorized to retain the savings realized under the provisions of P.D. 551. The authority granted in the said Order and letter is so clear and unequivocal as to leave any room for contradictory interpretation. This Board, therefore, holds as untenable petitioners claim that respondent Meralco was never authorized under the said Order and letter to hold on to the savings realized under the said decree. "The Board likewise finds to be devoid of merit petitioners contention that pursuant to Opinion No. 140, Series of 1979, of the Minister of Justice, it is absolutely mandatory on the part of respondent Meralco to pass on to its customers the savings under consideration. It must be pointed out that the Order of March 10, 1980 was issued by this Board on the basis of the recommendation contained in the Memorandum dated November 30, 1979 of the Minister of Finance, which was approved by the President of the Philippines in his directive to this Board dated December 11, 1979 issued thru Presidential Executive Assistant Jacobo Clave. This Board believes and so holds that the approval by the President of the Philippines of the aforesaid Finance Ministrys recommendation had the effects of (a) reversing or modifying the aforementioned Opinion of the Minister of Justice; and (b) confirming the promulgation by the Ministry of Finance, conformably with the specific authority granted it under P.D. No. 551, of an additional rule or regulation for the implementation of the said decree for the guidance of this Board. In issuing the Order of March 10, 1980, therefore, the Board has done no more than follow and be guided by the said additional rule or regulation. "It is noteworthy to mention also that the registered oppositors in BOE Case No. 79-692 (formerly BPW Case No. 72-2146), where the respondent herein originally filed its motion requesting for authority to defer the passing on to its customers of the franchise tax reduction benefits under P.D. No. 551, have done nothing to seek relief from or to appeal to the appropriate forum, the said Order of March 10, 1980. As a consequence, the disposition contained therein have long become final. xxx xxx

"That Meralco has been authorized to retain the savings resulting from the reduction of the franchise tax under P.D. No. 551 is, therefore beyond question." (Emphasis supplied) PCFI filed a motion for reconsideration but was denied by the BOE. Hence, PCFI filed a Petition for Certiorari with this Court, docketed as G.R. No. 63018. In a Resolution dated October 22, 1985, this Court dismissed the petition for lack of merit, holding that: We see no grave abuse of discretion warranting the setting aside of the BOE order. "P.D. No. 551 ordered the Minister of Finance to issue implementing rules and regulations. The Minister authorized all grantees of electric franchises, not Meralco alone, whose rates of return on their rate bases were below the legal allowable level to either ask for increased rates or to defer the passing on of benefits under the decree to consumers until just and reasonable returns could be had. Lengthy investigations, audits, hearings, and determinations over practically an eight year period preceded the questioned decision. The petitioners failed both below and in this petition to successfully refute the facts ascertained in the audits and examinations. The BOE approved option formed the basis of subsequent determinations of Meralco rates and the adopted formula became the basis of computations. When this petition was filed on January 27, 1983, the November 25, 1982 ruling was already final and executory. Moreover, the March 10, 1980 judgment rendered in BOE Case No. 79-692, where Meralco had filed a motion for authority to defer passing on to customers the savings from the reduction of franchise taxes, was not appealed or questioned by the petitioners. Instead, they filed BOE Case No. 82-198 on February 5, 1982 or almost two years later, raising the same issues against the same parties. BOEs questioned decision in Case No. 82-198 used the facts in BOE Case No. 79-692 for its conclusions. Not only had the March 10, 1980 decision confirmed the

findings of the Minister of Finance on Meralcos accounts and finances but in filing the second case, the petitioners were asking for a readjudication of the same issues in another challenge to these same findings .x x x. (Emphasis supplied) Four years thereafter, PCFI and a certain Edgardo S. Isip, private respondents herein, filed with respondent Regional Trial Court, Branch 76, Quezon City, a petition for declaratory relief, docketed as Civil Case No. Q-89-3659. Private respondents prayed for a ruling on who should be entitled to the savings realized by Meralco under P.D. No. 551. Once again, they insisted that pursuant to Section 4 of P.D. No. 551, the savings belong to the ultimate consumers. Meralco, in its answer, prayed for the dismissal of the petition on the ground of res judicata, citing this Court's Resolution in G.R. No. 63018 which affirmed the BOE's Decision in BOE Case No. 82-198. On January 16, 1991, respondent RTC rendered the assailed Decision declaring null and void the Resolution of this Court in G.R. No. 63018 and on the basis of the Dissenting Opinion of the late Justice Claudio Teehankee, held that the disputed savings belong to the consumers, thus: Respondent Meralcos theory is devoid of merit. As correctly stated in the dissenting opinion of the late Chief Justice Claudio Teehankee in the October 22, 1985 resolution of the Supreme Court in SC G.R. No. 63018, the decision of the Board of Energy is ultra vires, hence, null and void. x x x. "It is a well-settled rule in statutory construction that when the law is clear, it leaves no room for interpretation. The memorandum issued by the Minister of Finance which was made the basis of the decision of the Board of Energy has no legal effect because Sec. 4 of P.D. No. 551 is clear and unequivocal. xxx xxx

RESPONDENT JUDGES ERRED IN DECLARING NULL AND VOID A RESOLUTION OF THIS HONORABLE SUPREME COURT. III RESPONDENT JUDGES ERRED IN HOLDING THAT THE REMEDY OF DECLARATORY RELIEF WAS STILL AVAILABLE TO PRIVATE RESPONDENTS. IV RESPONDENT JUDGES ERRED IN NOT DISMISSING THE PETITION FOR DECLARATORY RELIEF." Meralco contends that Civil Case No. Q -89-3659 is already barred by prior judgments, referring to a) this Courts Resolution in G.R. No. 63018 sustaining the BOE's Decision in BOE Case No. 82-198; and b) the Order dated March 10, 1980 of the same Board in BOE Case No. 79-692, both holding that Meralco is authorized to retain its savings realized under P.D. 551. Meralco likewise argues that respondent RTC cannot annul the Resolution of this Court in G.R. No. 63018 considering that trial courts cannot set aside decisions of a superior court. And lastly, Meralco maintains that private respondents can no longer avail of the remedy of an action for declaratory relief in view of the rule that such action should be filed before a violation of the statute occurred. In their comment, private respondents argue that this Court's Resolution in G.R. No. 63018 cannot be a bar to Civil Case No. Q-89-3659 for declaratory relief considering that it did not delve on the essential issue raised in the latter case, i.e., who is entitled to the savings. Further, they claim that public interest would be defeated by the application of res judicata. The petition is meritorious. The issue - whether or not Meralco is duly authorized to retain the savings resulting from the reduction of the franchise tax under P.D. No. 551 as long as its rate of return falls below the 12 % allowable rate recognized in this jurisdiction has long been settled. Thus, the relitigation of the same issue in Civil Case No. Q-89-3659 cannot be sanctioned under the principle of res judicata. Res judicata means a matter adjudged, a thing judicially acted upon or decided; a thing or matter settled by judgment. In res judicata, the judgment in the first action is considered conclusive as to every matter offered and received therein, as to any other admissible matter which might have been offered for that purpose, and all other matters that could have been adjudged therein. For a claim of res judicata to prosper, the following requisites must concur: 1) there must be a final judgment or order; 2) the court rendering it must have jurisdiction over the subject matter and the parties; 3) it must be a judgment or order on the merits; and 4) there must be, between the two cases identity of parties, subject matter and causes of action. All the above requisites are extant in the records and thus, beyond dispute. Re: FIRST REQUISITE - there must be a final judgment: It is beyond question that this Courts Resolution dated October 22, 1985 in G.R. No. 63018, sustaining the BOEs Decision dated November 25, 1982 in BOE Case No. 82-198 which dismissed PCFI's petition, attained finality on December 4, 1985. As a matter of fact, this Court had long ago issued an Entry of Judgment stating that the said Resolution "became final and executory and is x x x recorded in the Book of Entries of Judgements." Prior thereto, or on March 10, 1980, the BOE's Order in BOE Case No. 79672 became final when the oppositors therein did not appeal.

"Since the law is clear, what is left to be done by the administrative body or agency concerned is to enforce the law. There is no room for an administrative interpretation of the law. In the instant case, the Board interpreted PD 551 and chose not only to enforce it but to amend and modify the law on the basis of a Memorandum and the authority issued by the Minister of Finance to all grantees of electric-franchises, not Meralco alone, whose rates of return on their rate basis were below the legal allowable level, to either ask for an increased rates or to defer the passing on of benefits under the decree to consumers, until just and reasonable return could be had. This is beyond the authority granted by PD 551 to the Minister of Finance. PD 551 merely ordered the Minister of Finance to issue implementing rules and regulations. He cannot amend or modify the clear mandate of the law. The act therefore of the Minister of Finance was ultra vires, hence, null and void. Considering that said act became the basis of the Board of Energys decision, it follows that said decision is likewise null and void and the Supreme Court resolution affirming said decision is also null and void having proceeded from a void judgment, hence, cannot be considered as valid judgment that will be a bar to the present action." (Emphasis supplied) Meralco moved for a reconsideration of the above Decision but was denied by respondent court in its Order of September 10, 1991. Hence, Meralco's petition for review on certiorari anchored on the following grounds: "I RESPONDENT JUDGES ERRED IN HOLDING THAT CIVIL CASE NO. 89-3659 IS NOT BARRED BY PRIOR JUDGMENT. II

Re: SECOND REQUISITE - the court which rendered the final judgment must have jurisdiction over the subject matter and the parties: There is no question that the BOE has jurisdiction over the subject matter and the parties herein. Under P.D. No. 1206, The BOE is the agency authorized to "regulate and fix the power rates to be charged by electric companies." As such, it has jurisdiction over Meralco, an electric company, and over the savings it realized under P.D. No. 551. It bears stressing that P.D. No. 551 was passed precisely to enable the grantees of electric franchises to reduce their rates within the reach of consumers. Clearly, the matter on how the disputed savings should be disposed of in order to realize a reduction of rates is within the competence of the BOE. Re: THIRD REQUISITE - it must be a judgment or order on the merits: The BOE's Decision in BOE Case No. 82-198 is a judgment on the merits. A judgment is on the merits when it determines the rights and liabilities of the parties based on the disclosed facts, irrespective of formal, technical or dilatory objections. After according both parties the opportunities to be heard, the BOE disposed of the controversy by resolving the rights of the parties under P.D. No. 551. In its Decision, the BOE declared in clear and unequivocal manner that Meralco "has been duly authorized to retain the savings realized under the provisions of P.D. No. 551" and that private respondent PCFIs argument to the contrary is "untenable." The BOE's Decision was upheld by this Court in G.R. No. 63018. Re: FOURTH REQUISITE - there must be between the two cases identity of parties, subject matter and causes of action: There is identity of parties between the two cases. BOE Case No. 82-198 was a contest between private respondent PCFI, as petitioner, and Meralco, as respondent. Civil Case No. Q-89-3659 involves the same contenders, except that respondent Edgardo Isip joined PCFI as a plaintiff. But his inclusion as such plaintiff is inconsequential. A party by bringing forward, in a second case, additional parties cannot escape the effects of the principle of res judicata when the facts remain the same. Res judicata is not defeated by a minor difference of parties, as it does not require absolute but only substantial identity of parties. The subject matters of BOE Case No. 82-198 and Civil Case No. Q-893659 are likewise identical since both refer to the savings realized by Meralco from the reduction of the franchise tax under P.D. No. 551. The subject matter of an action refers to the thing, wrongful act, contract or property which is directly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen. In both cases, the controversy is how the disputed savings shall be disposed of - whether they shall be retained by Meralco or be passed on to the consumers. With respect to identity of causes of action, this requisite is likewise present. In both cases, the act alleged to be in violation of the legal right of private respondents is Meralco's retention of the savings it realized under P.D. No. 551. While it is true that BOE Case No. 82-198 is one for specific performance, while Civil Case No. Q-89-3659 is for declaratory relief - in the ultimate - both are directed towards only one relief, i.e., the refund of the disputed savings to the consumers. To seek a court's declaration on who should benefit from the disputed savings (whether Meralco or the consumers) will result in the relitigation of an issue fairly and fully adjudicated in BOE Case No. 82-198. Clearly, the test of identity of causes of action lies not in the form of an action. The difference of actions in the aforesaid cases is of no moment. The doctrine of res judicata still applies considering that the parties were litigating for the same thing and more importantly, the same contentions. As can be gleaned from the records, private respondents arguments in Civil Case No. Q-89-3659 bear extreme resemblance with those raised in BOE Case No. 82-198.

Respondent RTC's Decision granting PCFI and Isip's petition for declaratory relief is in direct derogation of the principle of res judicata. Twice, it has been settled that Meralco is duly authorized to retain the savings it realized under P.D. No. 551 as long as its rate of return falls below the 12% allowable rate. The pronouncement of the BOE in BOE Case No. 82-198 finding such fact to be "beyond question" is clear and not susceptible of equivocation. This pronouncement was sustained by this Court in G.R. No. 63018. In finding no grave abuse of discretion on the part of the BOE, this Court saw the wisdom of its assailed Decision. Thus, this Court held: "[I]n dismissing the petition for specific performance, the BOE authorized Meralco, in lieu of increasing its rates to get a more reasonable return on investments while at the same time refunding to consumers the benefit of P.D. No. 551, to instead defer the passing on of benefits but without the planned increases. Instead of giving back money to consumers and then taking back the same in terms of increased rates, Meralco was allowed by the BOE to follow the more simplified and rational procedure." Private respondents now argue that G.R. No. 63018 merely decreed the postponement of the passing of Meralco's savings to the consumers until it could increase its rate charges. On this point, this Court categorically ruled: "X x x. And finally, as stated by the Solicitor General, if only to put the issue to final rest, BOEs decision authorizing Meralco to retain the savings resulting from the reduction of franchise tax as long as its rate of return falls below the 12% allowable rate is supported by P.D. No. 551, the rules and administrative orders of the Ministry of Finance which had been duly authorized by the decree itself and by directives of the President to carry out the provisions of the decree, and most of all by equitable economic considerations without which the decree would lose its purpose and viability." Corollarily, let it not be overlooked that the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and obligations of the parties under a statute, deed, contract etc. for their guidance in the enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged breach thereof. It may be entertained only before the breach or violation of the statute, deed, contract etc., to which it refers. The petition gives a practical remedy in ending controversies which have not reached the stage where other relief is immediately available. It supplies the need for a form of action that will set controversies at rest before they lead to repudiation of obligations, invasion of rights, and the commission of wrongs. Here, private respondents brought the petition for declaratory relief long after the alleged violation of P.D. No. 551. Lastly, we are dismayed by respondent RTC's adherence to the Dissenting Opinion, instead of the Majority Opinion, of the members of this Court in G.R. No. 63018, as well as its temerity to declare a Resolution of this Court "null and void" and "cannot be considered as valid judgment that will be a bar to the present action." A lower court cannot reverse or set aside decisions or orders of a superior court, especially of this Court, for to do so will negate the principle of hierarchy of courts and nullify the essence of review. A final judgment, albeit erroneous, is binding on the whole world. Thus, it is the duty of the lower courts to obey the Decisions of this Court and render obeisance to its status as the apex of the hierarchy of courts. "A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation." "There is only one Supreme Court from whose decisions all other courts should take their bearings," as eloquently declared by Justice J. B. L. Reyes. Respondent RTC, and for this matter, all lower courts, ought to be reminded that a final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. Although judicial determinations are not infallible, judicial error should be corrected through appeals, not through repeated suits on the same claim. In setting aside the Resolution and Entry of Judgment of this Court in G.R. No. 63018, respondent court grossly violated basic rules of civil procedure.

In fine, we stress that the rights of Meralco under P.D. No. 551, as determined by the BOE and sustained by this Court, have acquired the character of res judicata and can no longer be challenged. WHEREFORE, the petition is hereby GRANTED. The assailed RTC Decision dated January 16, 1991 and Order dated September 10, 1991 in Civil Case No. Q-89-3659 are REVERSED and SET ASIDE. SO ORDERED. Republic of the Philippines SUPREME COURT FIRST DIVISION G.R. No. 132428 October 24, 2000

They also observed that some of the seized starters did not have capacitors or if they possessed capacitors, these were not shaped like M&M. Still others merely had sticker jackets with prints of the GE logo. Mr. de la Cruz added that only Hankuk Stars of Korea manufactured GE starters and if these were imported by PEMCO, they would cost P7.00 each locally. As TCC's starters cost P1.60 each, the witnesses agreed that the glaring differences in the packaging, design and costs indisputably proved that TCC's GE starters were counterfeit. The defense presented YAO as its lone witness. YAO admitted that as general manager, he has overall supervision of the daily operation of the company. As such, he has the final word on the particular brands of products that TCC would purchase and in turn sold. He also admitted that TCC is not an accredited distributor of GE starters. However, he disclaimed liability for the crime charged since (1) he had no knowledge or information that the GE starters supplied to TCC were fake; (2) he had not attended any seminar that helped him determine which TCC products were counterfeit; (3) he had no participation in the manufacture, branding, stenciling of the GE names or logo in the starters; (4) TCC's suppliers of the starters delivered the same already branded and boxed; and (5) he only discussed with the suppliers matters regarding pricing and peak-volume items. In its 13-page 20 October 1993 decision, 2 the MeTC acquitted Roxas but convicted YAO. In acquitting Roxas, the trial court declared that the prosecution failed to prove that he was still one of the Board of Directors at the time the goods were seized. It anchored its conviction of YAO on the following: (1) YAO's admission that he knew that the starters were not part of GE's line products when he applied with PEMCO for TCC's accreditation as distributor; (2) the prosecution's evidence (Exhibit G-7), a delivery receipt dated 25 May 1989 issued by Country Supplier Center, on which a TCC personnel noted that the 2000 starters delivered were GE starters despite the statement therein that they were China starters; this fact gave rise to a presumption that the TCC personnel knew of the anomaly and that YAO as general manager and overall supervisor knew and perpetrated the deception of the public; (3) the fact that no genuine GE starter could be sold from 1986 whether locally manufactured or imported or at the very least in such large commercial quantity as those seized from TCC; and (4) presence of the elements of unfair competition. The dispositive portion of the decision reads as follows: For the failure of the prosecution to prove the guilt of the accused, Alfredo Roxas, of Unfair Competition under Article 189 (1) of the Revised Penal Code . . . i.e., to prove that he was Chairman of the Board of the Tradeway Commercial Corporation on October 10, 1990, as well as to have him identified in open court during the trial, he is acquitted of the same. But because the prosecution proved the guilt of the other accused, George Yao, beyond reasonable doubt as principal under the said Article 189 (1) for Unfair Competition, he is convicted of the same. In the absence of any aggravating or mitigating circumstances alleged/proven, and considering the provisions of the Indeterminate Sentence Law, he is sentenced to a minimum of four (4) months and twenty-one (21)days of arresto mayor to a maximum of one (1) year and five (5) months of prision correccional. This case was prosecuted by the law offices of Castillo Laman Tan and Pantaleon for . . . PEMCO . . . Considering that no document was submitted by the private complainant to show how the claim of 300,000 for consequential damages was reached and/or computed, the court is not in a position to make a pronouncement on the whole amount. However, the offender, George Yao, is directed to pay PEMCO the amount of P20,000 by way of consequential damages under Article 2202 of the New Civil Code, and to pay the law offices of Castillo, Laman Tan and Pantaleon the amount of another P20,000.00 as PEMCO's attorney's fees under Article 2208 (11) of the same.

GEORGE YAO, petitioner, vs. HON. COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents. DAVIDE, JR., J.: In this petition for review on certiorari, George Yao (hereafter YAO) assails the 25 April 1995 Resolution of the Court of Appeals in CA-G.R. No. 16893 which dismissed his appeal and ordered the remand of the records of the case to the Metropolitan Trial Court, Branch 52, Caloocan * City (hereafter MeTC) for execution. YAO was convicted by said MeTC for unfair competition. YAO's legal dilemma commenced in June 1990 when the Philippine Electrical Manufacturing Company (hereafter PEMCO) noticed the proliferation locally of General Electric (GE) lamp starters. As the only local subsidiary of GE-USA, PEMCO knew that it was a highly unlikely market situation considering that no GE starter was locally manufactured or imported since 1983. PEMCO commissioned Gardsmarks, Inc. to conduct a market survey. Gardsmarks, Inc., thru its trademark specialist, Martin Remandaman, discovered that thirty (30) commercial establishments sold GE starters. All these establishments pointed to Tradeway Commercial Corporation (hereafter TCC) as their source. Remandaman was able to purchase from TCC fifty (50) pieces of fluorescent lamp starters with the GE logo and design. Assessing that these products were counterfeit, PEMCO applied for the issuance of a search warrant. This was issued by the MeTC, Branch 49, Caloocan City. Eight boxes, each containing 15,630 starters, were thereafter seized from the TCC warehouse in Caloocan City. Indicted before the MeTC, Branch 52, Caloocan City for unfair competition under Article 189 of the Revised Penal Code were YAO, who was TCC's President and General Manager, and Alfredo Roxas, a member of TCC's Board of Directors. The indictment 1 charged YAO and Roxas of having mutually and in conspiracy sold fluorescent lamp starters which have the General Electric (GE) logo, design and containers, making them appear as genuine GE fluorescent lamp starters; and inducing the public to believe them as such, when they were in fact counterfeit. The case was docketed as Criminal Case No. C-155713. Both accused pleaded not guilty. At the trial, the prosecution presented evidence tending to establish the foregoing narration of facts. Further, the State presented witnesses Atty. Hofilena of the Castillo Laman Tan and Pantaleon Law Offices who underwent a familiarization seminar from PEMCO in 1990 on how to distinguish a genuine GE starter from a counterfeit, and Allan de la Cruz, PEMCO's marketing manager. Both described a genuine GE starter as having "a stenciled silk-screen printing which includes the GE logo . . . back to back around the starter, a drumlike glowbulb and a condenser/capacitor shaped like an M&M candy with the numbers .006." They then compared and examined random samples of the seized starters with the genuine GE products. They concluded that the seized starters did not possess the full design complement of a GE original.

This decision should have been promulgated in open court on July 28, 1993 but the promulgation was reset for August 31, 1993 in view of the absence of parties; it was again re-set for today. Promulgated this 20th day of October, 1993 in Kalookan City, Philippines.3 YAO filed a motion for reconsideration, which the MeTC denied in its order4 of 7 March 1994. YAO appealed to the Regional Trial Court of Caloocan City (RTC). The appeal was docketed as Criminal Case No. C-47255(94) and was assigned to Branch 121 of the court. On 24 May 1994, Presiding Judge Adoracion G. Angeles of Branch 121 issued an order5 directing the parties to file their respective memoranda. On 4 July 1994 YAO filed his Appeal Memorandum.6 Without waiting for the Memorandum on Appeal of the prosecution, which was filed only on 20 August 1994,7 Judge Adoracion Angeles rendered on 27 July 1994 a one-page Decision8 which affirmed in toto the MeTC decision. In so doing, she merely quoted the dispositive portion of the MeTC and stated that "[a]fter going over the evidence on record, the Court finds no cogent reason to disturb the findings of the Metropolitan Trial Court." YAO filed a motion for reconsideration 9 and assailed the decision as violative of Section 2, Rule 20 of the Rules of Court. 10 In its order11 of 28 September 1994, the RTC denied the motion for reconsideration as devoid of merit and reiterated that the findings of the trial court are entitled to great weight on appeal and should not be disturbed on appeal unless for strong and cogent reasons. On 4 October 1994, YAO appealed to the Court of Appeals by filing a notice of appeal.12 The appealed case was docketed as CA-G.R. CR No. 16893. In its Resolution13 of 28 February 1995, the Court of Appeals granted YAO an extension of twenty (20) days from 10 February or until 12 March 1995 within which to file the Appellant's Brief. However, on 25 April 1995 the Court of Appeals promulgated a Resolution 14 declaring that "[t]he decision rendered on July 27, 1994 by the Regional Trial Court, Branch 121, has long become final and executory" and ordering the records of the case remanded to said court for the proper execution of judgment. The pertinent portion of the Resolution reads: In Our resolution, dated February 28, 1995, accused-appellant was granted an extension of twenty (20) days from February 10, 1995, or until March 12, 1995 within which to file appellant's brief. To date, no appellant's brief has been filed. From the Manifestation, filed on March 24, 1995, by City Prosecutor Gabriel N. dela Cruz, Kalookan City, it would appear that: xxx xxx xxx

3. On October 4, 1994, George Yao filed a notice of appeal by registered mail. We will assume from the said Manifestation that the decision of the RTC and the order denying YAO's motion for reconsideration were sent to and received by YAO's counsel. Proceeding from said assumption, Yao had fifteen (15) days from August 16, 1994 to elevate his case to this Court. On August 30, 1994, or fourteen (14) days thereafter, Yao filed a motion for reconsideration. When he received the Order denying his aforesaid motion on October 3, 1994, he had one more day left to elevate his case to this Court by the proper mode of appeal, which is by petition for review. Yao, however, on October 4, 1994, filed a notice of appeal by registered mail informing the RTC that he is appealing his conviction to the Court of Appeals. By then, the fifteen (15) day period had already elapsed. That notwithstanding, the Branch Clerk of Court, RTC, Branch 121, transmitted to this Court the entire records of the case, thru a transmittal letter, dated October 13, 1994, and received by the Criminal Section of this Court on October 28, 1994. YAO's counsel, on February 20, 1995, filed with this Court, a motion for extension of period to file brief for accused-appellant which was granted in Our resolution mentioned in the opening paragraph of this resolution. Petitions for review shall be filed within the period to appeal. This period has already elapsed even when Yao filed a notice of appeal by registered mail, with the RTC of Kalookan City. Worse, the notice of appeal is procedurally infirm. YAO filed an Urgent Motion to Set Aside Entry of Judgment contending that the 25 April 1995 resolution did not specifically dismiss the appeal, for which reason, there was no Judgment on which an entry of judgment could be issued. He also argued that the attendant procedural infirmities in the appeal, if any, were cured with the issuance of the 28 February 1995 resolution granting him twenty (20) days from 10 February 1995 or until 12 March 1995 within which to file an appellant's brief and in compliance thereto, consequently filed his appellant's brief on 2 March 1995.15 In its Resolution 16 of 26 January 1998, the Court of Appeals denied the Urgent Motion to Set Aside the Entry of Judgment for lack of merit. It considered the 25 April 1995 resolution as having "in effect dismissed the appeal, [hence] the Entry of Judgment issued on May 26, 1995. . . was proper." In this petition for review on certiorari, YAO reiterates the arguments he raised in his Urgent Motion to Set Aside the Entry of Judgment of the Court of Appeals, thus: (1) that the entry of judgment was improvidently issued in the absence of a final resolution specifically dismissing the appeal; (2) the procedural infirmity in the appeal, if any, has been cured; and (3) the Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in denying him (YAO) due process of law. In support of his first argument, YAO cites Section 1, Rule 11 of the Revised Internal Rules of the Court of Appeals, thus: SECTION 1. Entry of Judgment Unless a motion for reconsideration is filed or an appeal is taken to the Supreme Court, judgments and final resolutions of the Court of Appeals shall be entered upon the expiration of fifteen (15) days after notice to parties. YAO claims that the 25 April 1995 resolution of the Court of Appeals was not a judgment on his appeal nor was it "a final resolution" contemplated in the Internal Rules since it did not specifically dismiss his appeal. A fortiori, the entry of judgment was improvidently issued for lack of legal basis.

2. George Yao received a copy of the RTC's decision on August 16, 1994, and filed a motion for reconsideration on August 30, 1994. On October 3, 1994, George Yao received a copy of the RTC's order, dated September 28, 1994, denying his motion for reconsideration.

YAO also repeats his argument that any procedural infirmity in the appeal was cured when the RTC gave due course to the appeal, elevated the records to the Court of Appeals which in turn issued on 13 December 1994 a notice to file his Appellant's Brief and granted him until 12 March 1995 within which to file the appellant's brief. Finally, YAO asserts that he was denied due process considering that (1) none of the elements of unfair competition are present in this case; (2) he filed his appeal to the Court of Appeals within the reglementary period; and (3) notwithstanding his filing of a notice of appeal (instead of a petition for review), it was a mere procedural lapse, a technicality which should not bar the determination of the case based on intrinsic merits. YAO then invokes the plethora of jurisprudence wherein the Supreme Court "in the exercise of equity jurisdiction decided to disregard technicalities"; "decided [the case] on merits and not on technicalities"; "found manifest in the petition strong considerations of substantial justice necessitating the relaxing of the stringent application of technical rules," or "heeded petitioner's cry for justice because the basic merits of the case warrant so, as where the petition embodies justifying circumstances"; discerned "not to sacrifice justice to technicality"; discovered that the application of "res judicata" and estoppel by judgment amount to a denial of justice and/or a bar to a vindication of a legitimate grievance."17 In its Comment, the Office of the Solicitor General prays that the petition should be dismissed for lack of merit. It maintains that although the 25 April 1995 resolution did not specifically state that the appeal was being dismissed, the intent and import are clear and unequivocable. It asserts that the appeal was obviously dismissed because the RTC decision has long become final and executory. YAO failed to challenge the RTC decision, within the reglementary period, by filing a petition for review of the same with the Court of Appeals pursuant to Section 1 of Rule 42 of the Rules of Court. Instead, he filed an ordinary appeal by way of a notice of appeal. Hence, the period to file the correct procedural remedy had lapsed. There is no dispute that YAO availed of the wrong procedural remedy in assailing the RTC decision. It is clear from the records that YAO received a copy of the adverse RTC judgment on 16 August 1994. He has fifteen (15) days or until 31 August 1994 within which to file either a motion for reconsideration or a petition for review with the Court of Appeals. Fourteen (14) days thereafter or on 30 August 1994, YAO opted to file a motion for reconsideration the pendency of which tolled the running of the period. He received a copy of the RTC's order denying the motion for reconsideration on 3 October 1994. He had therefore, only one day left, 4 October 1994 as the last day, within which to file with the Court of Appeals a petition for review.18 However, on said date, YAO filed a notice of appeal. He palpably availed of the wrong mode of appeal. And since he never instituted the correct one, he lost it. The right to appeal is not a constitutional, natural or inherent right. It is a statutory privilege of statutory origin and, therefore, available only if granted or provided by statute.19 Since the right to appeal is not a natural right nor a part of due process, it may be exercised only in the manner and in accordance with the provisions of law. 20 Corollarily, its requirements must be strictly complied with. That an appeal must be perfected in the manner and within the period fixed by law is not only mandatory but jurisdictional.21 Non-compliance with such legal requirements is fatal,22 for it renders the decision sought to be appealed final and executory,23 with the end result that no court can exercise appellate jurisdiction to review the decision. 24 In the light of these procedural precepts, YAO's petition appears to be patently without merit and does not deserve a second look. Hence, the reasons he enumerated to persuade this Court to grant his petition and reinstate his appeal are obviously frivolous if not downright trivial. They need not even be discussed here. In the normal and natural course of events, we should dismiss the petition outright, if not for an important detail which augurs well for YAO and would grant him a reprieve in his legal battle. The decision of the RTC

affirming the conviction of YAO palpably transgressed Section 14, Article VIII of the Constitution, which states: SECTION 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. xxx xxx xxx

Let us quote in full the RTC judgment: This is an appeal from the decision of the Metropolitan Trial Court, Branch 52, Kalookan City, in Crim. Case No. C-155713, the dispositive portion of which reads as follows: xxx xxx xxx

But because the prosecution proved the guilt of the other accused, George Yao, beyond reasonable doubt as principal under the said Article 189 (1) for Unfair Competition, he is convicted of the same. In the absence of any aggravating or mitigating circumstances alleged/proven, and considering the provisions of the Indeterminate Sentence Law, he is sentenced to a minimum of four (4) months and twenty-one (21) days of arresto mayor to a maximum of one (1) year and five (5) months of prision correccional. xxx xxx xxx

After going over the evidence on record, the Court finds no cogent reason to disturb the findings of the Metropolitan Trial Court. WHEREFORE, this Court affirms in toto the decision of the Metropolitan Trial Court dated October 20, 1993. SO ORDERED. That is all there is to it. We have sustained decisions of lower courts as having substantially or sufficiently complied with the constitutional injunction notwithstanding the laconic and terse manner in which they were written and even if "there (was left) much to be desired in terms of (their) clarity, coherence and comprehensibility" provided that they eventually set out the facts and the law on which they were based, 25 as when they stated the legal qualifications of the offense constituted by the facts proved, the modifying circumstances, the participation of the accused, the penalty imposed and the civil liability;26 or discussed the facts comprising the elements of the offense that was charged in the information, and accordingly rendered a verdict and imposed the corresponding penalty; 27 or quoted the facts narrated in the prosecution's memorandum but made their own findings and assessment of evidence, before finally agreeing with the prosecution's evaluation of the case.28 We have also sanctioned the use of memorandum decisions, 29 a specie of succinctly written decisions by appellate courts in accordance with the provisions of Section 40, B.P. Blg. 129 30 on the grounds of expediency, practicality, convenience and docket status of our courts. We have also declared that memorandum decisions comply with the constitutional mandate.31 In Francisco v. Permskul,32 however, we laid down the conditions for the of validity of memorandum decisions, thus: The memorandum decision, to be valid, cannot incorporate the findings of fact and the conclusions of law of the lower court

only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. In other words, the memorandum decision authorized under Section 40 of B.P. Blg. 129 should actually embody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. It is expected that this requirement will allay the suspicion that no study was made of the decision of the lower court and that its decision was merely affirmed without a proper examination of the facts and the law on which it is based. The proximity at least of the annexed statement should suggest that such an examination has been undertaken. It is, of course, also understood that the decision being adopted should, to begin with, comply with Article VIII, Section 14 as no amount of incorporation or adoption will rectify its violation. The Court finds necessary to emphasize that the memorandum decision should be sparingly used lest it become an addictive excuse for judicial sloth. It is an additional condition for the validity that this kind of decision may be resorted to only in cases where the facts are in the main accepted by both parties and easily determinable by the judge and there are no doctrinal complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the appeal is obviously groundless and deserves no more than the time needed to dismiss it. xxx xxx xxx

where not only property rights are at stake but also the liberty if not the life of a human being. Faithful adherence to the requirements of Section 14, Article VIII of the Constitution is indisputably a paramount component of due process and fair play.37 It is likewise demanded by the due process clause of the Constitution.38 The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot simply say that judgment is rendered in favor of X and against Y and just leave it at that without any justification whatsoever for its action. The losing party is entitled to know why he lost, so he may appeal to the higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.39 More than that, the requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing him from deciding ipse dixit. Vouchsafed neither the sword nor the purse by the Constitution but nonetheless vested with the sovereign prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge must ultimately depend on the power of reason for sustained public confidence in the justness of his decision.40 Thus the Court has struck down as void, decisions of lower courts and even of the Court of Appeals whose careless disregard of the constitutional behest exposed their sometimes cavalier attitude not only to their magisterial responsibilities but likewise to their avowed fealty to the Constitution. Thus, we nullified or deemed to have failed to comply with Section 14, Article VIII of the Constitution, a decision, resolution or order which: contained no analysis of the evidence of the parties nor reference to any legal basis in reaching its conclusions; contained nothing more than a summary of the testimonies of the witnesses of both parties; 41 convicted the accused of libel but failed to cite any legal authority or principle to support conclusions that the letter in question was libelous 42 ; consisted merely of one (1) paragraph with mostly sweeping generalizations and failed to support its conclusion of parricide 43 ; consisted of five (5) pages, three (3) pages of which were quotations from the labor arbiter's decision including the dispositive portion and barely a page (two [2] short paragraphs of two [2] sentences each) of its own discussion or reasonings 44 ; was merely based on the findings of another court sans transcript of stenographic notes;45 or failed to explain the factual and legal bases for the award of moral damages.46 In the same vein do we strike down as a nullity the RTC decision in question. In sum, we agree with YAO that he was denied due process but not on the grounds he ardently invoked but on the reasons already extensively discussed above. While he indeed resorted to the wrong mode of appeal and his right to appeal is statutory, it is still an essential part of the judicial system that courts should proceed with caution so as not to deprive a party of the prerogative, but instead afford every party-litigant the amplest opportunity for the proper and just disposition of his case, freed from the constraints of technicalities.47 In the interest of substantial justice, procedural rules of the most mandatory character in terms of compliance, may be relaxed. 48 In other words, if strict adherence to the letter of the law would result in absurdity and manifest injustice49 or where the merit of a party's cause is apparent and outweighs consideration of non-compliance with certain formal requirements,50 procedural rules should definitely be liberally construed. A party-litigant is to be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property on mere technicalities.51 We therefore withhold legal approbation on the RTC decision at bar for its palpable failure to comply with the constitutional and legal mandates thereby denying YAO of his day in court. We also remind all magistrates to heed the demand of Section 14, Article VIII of the

Henceforth, all memorandum decisions shall comply with the requirements herein set forth both as to the form prescribed and the occasions when they may be rendered. Any deviation will summon the strict enforcement of Article VIII, Section 14 of the Constitution and strike down the flawed judgment as a lawless disobedience. Tested against these standards, we find that the RTC decision at bar miserably failed to meet them and, therefore, fell short of the constitutional injunction. The RTC decision is brief indeed, but it is starkly hallow, otiosely written, vacuous in its content and trite in its form. It achieved nothing and attempted at nothing, not even at a simple summation of facts which could easily be done. Its inadequacy speaks for itself. We cannot even consider or affirm said RTC decision as a memorandum decision because it failed to comply with the measures of validity laid down in Francisco vs. Permskul. It merely affirmed in toto the MeTC decision without saying more. A decision or resolution, especially one resolving an appeal, should directly meet the issues for resolution; otherwise, the appeal would be pointless.33 We therefore reiterate our admonition in Nicos Industrial Corporation v. Court of Appeals,34 in that while we conceded that brevity in the writing of decisions is an admirable trait, it should not and cannot be substituted for substance; and again in Francisco v. Permskul, 35 where we cautioned that expediency alone, no matter how compelling, cannot excuse noncompliance with the constitutional requirements. This is not to discourage the lower courts to write abbreviated and concise decisions, but never at the expense of scholarly analysis, and more significantly, of justice and fair play, lest the fears expressed by Justice Feria as the ponente in Romero v. Court of Appeals 36 come true, i.e., if an appellate court failed to provide the appeal the attention it rightfully deserved, said court deprived the appellant of due process since he was not accorded a fair opportunity to be heard by a fair and responsible magistrate. This situation becomes more ominous in criminal cases, as in this case,

Constitution. It is their solemn and paramount duty to uphold the Constitution and the principles enshrined therein, lest they be lost in the nitty-gritty of their everyday judicial work. WHEREFORE, in view of all the foregoing, the petition in this case is GRANTED. The questioned 25 April 1995 resolution of the Court of AppeaLs in CA-G.R. No. 16893 is hereby SET ASIDE and the 27 July 1994 decision of the Regional Trial Court, Branch 121 of Kalookan City rendered in its appellate jurisdiction is NULLIFIED. The records are hereby remanded to said Regional Trial Court for further proceedings and for the rendition of judgment in accordance with the mandate of Section 14, Article VIII of the Constitution. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 73777-78 September 12, 1990 THE CONSOLIDATED BANK AND TRUST CORPORATION (SOLIDBANK), petitioner, vs. HON. INTERMEDIATE APPELLATE COURT, PHILIPPINE KNITTING MILLS, INC., SPOUSES LUIS CHENG, SPOUSES TOMAS CHENG, SPOUSES CARLOS CRUZ & CHENG KIEM HUEN CRUZ, respondents. C.M. De Los Reyes & Associates for petitioner. Jose C. Guico, Jr. for private respondents except Sps. Carlos C. Cruz. Nardo M. De Guzman, Sr. for private respondents Sps. Carlos C. Cruz. CRUZ, J.: The petitioner is questioning the resolution of the respondent court dated January 10, 1986, setting aside a decision promulgated by one of its divisions after the death of the ponente. The ponente was the late Justice Simeon M. Gopengco, who passed away on July 20, 1985. The decision was signed by him, with Justices Lino M. Patajo, Jose F. Racela, Jr., and Fidel P. Purisima concurring. The first page of the decision indicated that it had been promulgated on July 19, 1985, the day before Justice Gopengco's death. However, the other records of the respondent court show otherwise. It appears therefrom that the decision was actually promulgated on July 23, 1985, three days after the ponente's death. The logbook in his office carried an entry that the ponencia was delivered to the office of the Division Clerk of Court only on that date. 1 It was promulgated on that same date by the said official in accordance with the internal rules of the respondent court. This fact was affirmed by her in a certification reading as follows: CERTIFICATION TO WHOM IT MAY CONCERN:

This is to certify that the Office of the undersigned Division Clerk of Court received on July 23, 1985 from the Office of the late Justice SIMEON M. GOPENGCO the original and copies of decision rendered in cases AC-G.R. SP Nos. 03804 and 05071, Spouses Carlos C. Cruz, et al. and Philippine Knitting Mills, Inc., et al. v. Hon. Antonio Martinez, etc., et al. and that said copies of decision addressed to the parties and/or counsel, were sent to the Mailing Section of this Court on July 23, 1985 at 3:40 p.m., as appearing in our book. This certification is issued upon the request of Atty. Nardo M. de Guzman, Sr. Manila, October 15, 1985. The promulgation was made in accordance with Article V, Section E, Rules of Internal Operating Procedures of the respondent court, reading as follows: E. Promulgation of Decision. The promulgation of judgments or resolutions, including resolutions of motions, shall be the direct responsibility of the division clerk of court. The promulgation must be done not later than the next working day after a decision or resolution shall have been signed and filed by all the Justices concerned. The date of promulgation must be annotated on the first page of the decision or resolution and signed or initialed by the division clerk. On the same date that the decision or resolution shall be promulgated, notice of the same shall be prepared and sent to the Mailing Section for immediate service on the parties. The notice and the copy of the decision or resolution must be contained in a sealed envelope before being sent to the Mailing Section for service on the parties. After service on all the parties shall have been done, the original copy of the decision or resolution shall be filed with the Reporter's Division. The rollo shall remain with the Office of the Division Clerk while the record of the case shall be sent to the records custodian (Archives Section) until remanded to the court of origin, archived, or forwarded to the Supreme Court in the proper cases. There is evidence showing that the ponencia was sent by the office of Justice Gopengco to the office of Justice Purisima on July 18, 1985, and was returned by the latter on July 22, 1985. 2 It cannot be determined exactly when Justice Purisima signed the ponencia during the period when it was in his office. The dates when Justices Patajo and Racela affixed their signatures to the decision are not shown either. What is definite is that when the decision was actually promulgated on July 23, 1985, the ponente was already deceased. In the questioned resolution, the same division of the respondent court declared the decision void because it had been tardily promulgated. Reference was made to Marcelino v. Cruz, 3 where this Court declared: The judge who wrote the questioned decision has died. It cannot now be promulgated. "It is well-settled that, to be binding, a judgment must

be duly signed and promulgated during the incumbency of the judge whose signature appears thereon." (People v. So, July 30, 1957, No. L-8732, citing Lino Luna v. Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil. 675; Barredo v. The Commission on Elections, 45 Off. Gaz. 4457; People v. Court of Appeals, G.R. No. L-9111-91113) For this reason, petitioner's case has to be declared by another judge. It is noteworthy that the resolution was signed by Justices Racela and Purisima, who were in the original division, and Justice Carolina Grio-Aquino. The petitioner contends that the cited decisions involved single courts only and do not apply to collegiate courts where decisions are made not by one judge alone but by a majority or all of the members. Even with Justice Gopengco's death, the decision still had the support of the three other members, who constituted the rest of the division. The ponencia was after all not the decision of the ponente alone but of the entire division. It is settled that in single courts like the regional trial courts and the municipal trial courts, a decision may no longer be promulgated after the ponente has vacated his office. The question is whether this rule is also applicable to collegiate courts, as in the case at bar. The Court has deliberated on this question and finds there is no reason why a different rule should be adopted for collegiate courts. A decision becomes binding only after it is validly promulgated and not before. As we said only recently in In re Emiliano Jurado, 4 "a decision or resolution of the Court becomes such, for all legal intents and purposes, only from the moment of its promulgation." According to Chief Justice Moran in the landmark case of Araneta v. Dinglasan: 5 Accordingly, one who is no longer a member of this Court at the time a decision is signed and promulgated, cannot validly take part in that decision. As above indicated, the true decision of the Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the Court after the deliberation is always understood to be subject to confirmation at the time he has to sign the decision that is to be promulgated. That vote is of no value if it is not thus confirmed by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast their votes, wish to preserve their freedom of action till the last moment when they have to sign the decision, so that they may take full advantage of what they may believe to be the best fruit of their most mature reflection and deliberation. In consonance with this practice, before a decision is signed and promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon the Justice themselves. Of course, they may serve for determining what the opinion of the majority provisionally is and for designating a member to prepare the decision of the Court, but in no way is that decision binding unless and until duly signed and promulgated.

We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated. A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it. If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his office, his vote is automatically withdrawn. This was that happened in the Araneta case, where Justice Gregorio Perfecto's signature on the original decision was disregarded when he died before it could be promulgated. The decision remained valid, however, because it was still supported by a majority of the Supreme Court then, and, no less importantly, Justice Perfecto was not the ponente. The ponente in a collegiate court should remain a member thereof at the time his ponencia is promulgated because, at any time before that, he has the privilege of changing his opinion for the consideration of his colleagues. As a rule, his recommendations are accepted in recognition of the special study he is supposed to have made of the case after his designation as its ponente. It is important that he be incumbent at the time the decision is promulgated, in the event he may want to make last minute changes therein with the approval of the other members. Obviously, he cannot exercise this privilege if he is no longer in office. It is on this justification that, as a matter of practice (and of courtesy), this Court defers promulgation of a decision written by a member on official leave until his return. The author is afforded an opportunity to suggest to the rest of the Court any change he may want to make in his ponencia before it is officially pronounced. Applying the above rules, we hold that the questioned ponencia died with the ponente and consequently could not be promulgated thereafter. WHEREFORE, the petition is DENIED, with costs against the petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169885 July 25, 2006

ARTEMIO PEDRAGOZA, petitioner, vs. COMMISSION ON ELECTIONS and FRANCISCO SUMULONG, JR., respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari 1 of the Resolution dated 30 September 2005 of the Commission on Elections ("COMELEC") En Banc affirming the ruling of the COMELEC First Division ("First Division") in an election protest case involving the office of Punong Barangay of De La Paz, Antipolo City.

The Facts Petitioner Artemio Pedragoza ("petitioner") and respondent Francisco Sumulong, Jr. ("respondent") were among the candidates for Punong Barangay of De La Paz, Antipolo City in the 15 July 2002 Sangguniang Kabataan and Barangay elections. Petitioner was proclaimed winner by a margin of 39 votes.2 Claiming that irregularities marred the elections, respondent filed an election protest in the Municipal Trial Court in Cities, Antipolo City ("trial court"). Respondent sought a recount of ballots from 25 out of De La Paz's 103 precincts. In his Answer, petitioner denied respondent's claim and filed a counterprotest, contending that he was the one prejudiced by election irregularities. The trial court revised the contested ballots. The Ruling of the Trial Court On 20 January 2003, the trial court rendered judgment dismissing the election protest and counter-protest. The trial court noted that petitioner and respondent raised substantially identical objections 3 to the contested ballots and other election paraphernalia. After going over these grounds, the trial court ruled that the objections did not suffice to change the election results. Respondent appealed to the COMELEC. The appeal, docketed as EAC No. 42-2003, was raffled to the First Division. The Ruling of the COMELEC In its Resolution of 18 May 2005, the First Division granted respondent's appeal, reversed the trial court's Decision, annulled petitioner's proclamation, declared respondent as the duly elected Punong Barangay, and ordered petitioner to vacate the contested office and to desist from performing the functions of that office. The First Division found respondent to have won the election by 19 votes. The First Division noted that the parties invoked the following grounds for the revision of ballots: (1) the assailed ballots are marked because unnecessary words or figures, identifying markings, erasures, and retracing of letters were manifest on the ballots or that distinctive circles, lines, or crosses were written on the ballots; (2) pairs or sets of ballots were written by one person or that two or more persons participated in filling-up one ballot; and (3) certain ballots are invalid because they were not signed at the back by the Chairman of the Board of Election Tellers. Applying pertinent rules of ballot appreciation, the First Division deducted 75 invalid votes from, and added five valid votes to, petitioner's tally, leaving a total of 2,189 votes. On the other hand, the First Division deducted 12 invalid votes from respondent's tally, leaving a total of 2,208 votes. Thus the 19vote margin in respondent's favor. Petitioner sought reconsideration with the COMELEC En Banc, listing the ballots he wanted re-examined. However, in the per curiam Resolution of 30 September 2005, the COMELEC En Banc denied petitioner's motion and affirmed the First Division's findings. All the five incumbent COMELEC Commissioners, namely, Benjamin S. Abalos, Rufino S.B. Javier, Resurreccion Z. Borra, Mehol K. Sadain, and Florentino A. Tuason, Jr. signed the Resolution. Commissioners Sadain and Tuason took no part, without, however, indicating the reasons for their inhibition. Petitioner raises two contentions in this petition: (1) that the Court should invalidate the Resolution of 30 September 2005 for having been promulgated without a quorum because of the failure of Commissioners Sadain and Tuason to indicate the reasons for their taking no part in the case and, alternatively, (2) that the COMELEC En Banc committed grave abuse of discretion in affirming the findings of the First Division. The Issues

The petition raises the following issues: 1) Whether the failure of Commissioners Sadain and Tuason to indicate their reasons for taking no part in the case annuls the Resolution of 30 September 2005 and, if in the negative, 2) Whether the COMELEC En Banc committed grave abuse of discretion in affirming the First Division's findings. The Ruling of the Court The petition has no merit. We hold that the Resolution of 30 September 2005 is valid and that the COMELEC En Banc did not commit grave abuse of discretion in issuing that ruling. The Failure of Commissioners Sadain and Tuason to State their Reasons for Taking No Part in the Resolution of 30 September 2005 does not Annul that Ruling Under Section 1, Rule 18 of the COMELEC Rules of Procedure 4 ("COMELEC Rules"), a COMELEC member who takes no part in a decision or resolution must state the reason for his inhibition. The provision states: Procedure in Making Decisions. The conclusions of the Commission in any case submitted to it for decision en banc or in Division shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion of the Commission or the Division and a certification to this effect signed by the Chairman or the Presiding Commissioner, as the case may be, shall be incorporated in the decision. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor . (Emphasis supplied) Section 13, Article VIII of the 1987 Constitution imposes an identical requirement on the members of this Court and all lower collegiate courts.5 By intent of the Constitution's framers, as reflected in the language of the text, this requirement is mandatory.6 Owing to the exact identity of the two provisions' phrasing of the requirement in question, Section 1, Rule 18 (which, in all probability, was lifted from Section 13, Article VIII), must be of mandatory nature itself. There is no dispute here that two COMELEC Commissioners took no part in the 30 September 2005 Resolution without stating the reasons for their inhibition. Petitioner is of the view that this omission annuls the 30 September 2005 Resolution for lack of quorum, with the two nonparticipating Commissioners' votes becoming "inexistent."7 We cannot sustain this view. To begin with, even if the votes of Commissioners Sadain and Tuason are disregarded (for whatever reason), a quorum still remains, with three of the then five8 COMELEC Commissioners voting to deny petitioner's motion for reconsideration. The more important question is whether, despite such quorum, the 30 September 2005 Resolution should be invalidated for failure of the two Commissioners to state the reasons for their inhibition. While there is no extant record of the COMELEC's proceedings in adopting Section 1, Rule 18 of the COMELEC Rules, the parallel deliberations of the framers of the 1987 Constitution on Section 13, Article VIII shed light on the purpose of the rule requiring a member of this Court and all lower collegiate courts to state his reason for taking no part in a case. Because of the exact identity of the rule in question as stated in Section 1, Rule 18 and Section 13, Article VIII, these deliberations apply here by analogy. In discussing the purpose of the rule in question, which was absent in the 1935 and 1973 Constitutions, 9 Constitutional Commissioner and former

Chief Justice Roberto Concepcion explained that it was meant to "[see] to it that all justices participate [in the promulgation of decisions] x x x," thus: MR. RAMA. Madam President, I ask that Commissioner Suarez be recognized on Section 11. THE PRESIDENT. Commissioner Suarez is recognized. MR. SUAREZ. Thank you, madam President. As proposed to be amended, Section 11 would read: "x x x x ANY MEMBER WHO TOOK NO PART OR DISSENTED, OR ABSTAINED FROM A DECISION OR RESOLUTION MUST STATE THE REASON THEREFOR. THE SAME REQUIREMENTS SHALL BE OBSERVED BY ALL LOWER COLLEGIATE COURTS." The proposed amendment seeks the deletion of the phrase "dissenting or abstaining," and in lieu thereof, the substituted phrase "WHO TOOK NO PART, OR DISSENTED, OR ABSTAINED FROM A DECISION OR RESOLUTION" and then the word "THEREFOR," Madam President. THE PRESIDENT. Are there any comments? Commissioner Guingona is recognized. MR. GUINGONA. Madam President, may I just inquire where the reason is supposed to be indicated. Does the reason refer to the certification, madam President? MR. CONCEPCION. No. In the decision itself. MR. GUINGONA. That is it. I am referring now to the first instance where a Member takes no part, where, for example, he takes no part because he is abroad or is hospitalized. I was wondering whether this need not be a personal statement. xxxx MR. CONCEPCION. Generally, the Chief Justice certifies. But as to reasons for an abstention, it is a personalized matter that only the judge concerned may explain it. MR. GUINGONA. This was an addition, Madam President. Originally, it was only referring to "abstentions," it was only referring to instances when the justice dissented. Thank you. MR. CONCEPCION. It is also one way of seeing to it that all justices participate, because something must be done by the judge who did not take part and the reason for his failure to participate should be stated . It may be rather awkward for a judge to say that he is abroad. We feel that judges would, in general, prefer to avoid such explanations to appear in many cases. The explanation was required before in case of dissent. Now a judge must state why he took no part, or dissented, or abstained. (Emphasis supplied)10 Being a devise to dissuade members of this Court and all lower collegiate courts (or in this case, the members of the COMELEC) from not taking part in the deliberation of cases, the requirement has nothing to do with the ruling involved but concerns the judge himself. Thus, non-compliance with the rule does not annul the ruling in which a judge takes no part but may be basis for holding him responsible for the omission.

Indeed, the omission involved here is akin to the failure of the head of a collegiate court to issue the certification under Section 13, Article VIII that "The conclusions of the x x x Court in any case submitted to it for decision en banc or in division [was] reached in consultation before the case [was] assigned to a Member for the writing of the opinion of the Court," a requirement also imposed on the Chairman or the Presiding Commissioner of the COMELEC, as the case may be, under Section 1, Rule 18. We held in Consing v. Court of Appeals that such omission does not invalidate the questioned ruling but "may be basis for holding the official responsible for the omission to account therefor," thus: The certification requirement, x x x, is a new provision introduced by the framers of the 1987 Constitution. Its purpose is to ensure the implementation of the constitutional requirement that decisions of the Supreme Court and lower collegiate courts, such as the Court of Appeals, Sandiganbayan and Court of Tax Appeals, are reached after consultation with the members of the court sitting en banc or in a division before the case is assigned to a member thereof for decision-writing. The decision is thus rendered by the court as a body and not merely by a member thereof [I Record of the Constitutional Commission 498-500]. This is in keeping with the very nature of a collegial body which arrives at its decisions only after deliberation, the exchange of views and ideas, and the concurrence of the required majority vote. The absence, however, of the certification would not necessarily mean that the case submitted for decision had not been reached in consultation before being assigned to one member for the writing of the opinion of the Court since the regular performance of official duty is presumed [Sec. 5 (m) of Rule 131, Rules of Court]. The lack of certification at the end of the decision would only serve as evidence of failure to observe the certification requirement and may be basis for holding the official responsible for the omission to account therefor [See I Record of the Constitutional Commission 460]. Such absence of certification would not have the effect of invalidating the decision.11(Emphasis supplied) Accordingly, we hold that the failure of Commissioners Sadain and Tuason to state the reasons for their inhibition from the 30 September 2005 Resolution does not affect the validity of that ruling. The COMELEC did not Commit Grave Abuse of Discretion On petitioner's alternative contention that the COMELEC En Banc committed grave abuse of discretion in affirming the findings of the First Division, we find no merit to this claim. In his petition, petitioner contented himself with making the sweeping charge that the COMELEC En Banc's ruling is contrary to "law, x x x evidence and existing jurisprudence" without substantiating his claim. Perhaps realizing this, petitioner, in his Reply to respondent's Comment, reproduced the grounds he raised in his motion for reconsideration with the COMELEC En Banc. This does not suffice to sustain his claim of grave abuse of discretion. The office of a petition for certiorari is not to correct simple errors of judgment but "capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility." 12 We have gone over the grounds petitioner raised in his motion for reconsideration with the COMELEC En Banc and we find no such grave error tainting the Resolution of 30 September 2005. WHEREFORE, we DISMISS the petition. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC

B.M. No. 712 July 13, 1995 IN THE MATTER OF THE ADMISSION TO THE BAR AND OATHTAKING OF SUCCESSFUL BAR APPLICANT AL C. ARGOSINO, petitioner. RESOLUTION

FELICIANO, J.: A criminal information was filed on 4 February 1992 with the Regional Trial Court of Quezon City, Branch 101, charging Mr. A.C. Argosino along with thirteen (13) other individuals, with the crime of homicide in connection with the death of one Raul Camaligan on 8 September 1991. The death of Raul Camaligan stemmed from the infliction of severe physical injuries upon him in the course of "hazing" conducted as part of university fraternity initiation rites. Mr. Argosino and his co-accused then entered into plea bargaining with the prosecution and as a result of such bargaining, pleaded guilty to the lesser offense of homicide through reckless imprudence. This plea was accepted by the trial court. In a judgment dated 11 February 1993, each of the fourteen (14) accused individuals was sentenced to suffer imprisonment for a period ranging from two (2) years, four (4) months and one (1) day to four (4) years. Eleven (11) days later, Mr. Argosino and his colleagues filed an application for probation with the lower court. The application for probation was granted in an Order dated 18 June 1993 issued by Regional Trial Court Judge Pedro T. Santiago. The period of probation was set at two (2) years, counted from the probationer's initial report to the probation officer assigned to supervise him. Less than a month later, on 13 July 1993, Mr. Argosino filed a Petition for Admission to Take the 1993 Bar Examinations. In this Petition, he disclosed the fact of his criminal conviction and his then probation status. He was allowed to take the 1993 Bar Examinations in this Court's En Banc Resolution dated 14 August 1993. 1 He passed the Bar Examination. He was not, however, allowed to take the lawyer's oath of office. On 15 April 1994, Mr. Argosino filed a Petition with this Court to allow him to take the attorney's oath of office and to admit him to the practice of law, averring that Judge Pedro T. Santiago had terminated his probation period by virtue of an Order dated 11 April 1994. We note that his probation period did not last for more than ten (10) months from the time of the Order of Judge Santiago granting him probation dated 18 June 1993. Since then, Mr. Argosino has filed three (3) Motions for Early Resolution of his Petition for Admission to the Bar. The practice of law is not a natural, absolute or constitutional right to be granted to everyone who demands it. Rather, it is a high personal privilege limited to citizens of good moral character, with special educational qualifications, duly ascertained and certified. 2 The essentiality of good moral character in those who would be lawyers is stressed in the following excerpts which we quote with approval and which we regard as having persuasive effect: In Re Farmer: 3 xxx xxx xxx This "upright character" prescribed by the statute, as a condition precedent to the applicant's right to receive a license to practice law in North Carolina, and of which he must, in addition to other requisites, satisfy the court,

includes all the elements necessary to make up such a character. It is something more than an absence of bad character. It is the good name which the applicant has acquired, or should have acquired, through association with his fellows. It means that he must have conducted himself as a man of upright character ordinarily would, or should, or does. Such character expresses itself, not in negatives nor in following the line of least resistance , but quite often, in the will to do the unpleasant thing if it is right, and the resolve not to do the pleasant thing if it is wrong. . . . xxx xxx xxx And we may pause to say that this requirement of the statute is eminently proper. Consider for a moment the duties of a lawyer. He is sought as counsellor, and his advice comes home, in its ultimate effect, to every man's fireside. Vast interests are committed to his care; he is the recipient of unbounded trust and confidence; he deals with is client's property, reputation, his life, his all. An attorney at law is a sworn officer of the Court, whose chief concern, as such, is to aid the administration of justice. . . . xxx xxx xxx 4 In Re Application of Kaufman , 5 citing Re Law Examination of 1926 (1926) 191 Wis 359, 210 NW 710: It can also be truthfully said that there exists nowhere greater temptations to deviate from the straight and narrow path than in the multiplicity of circumstances that arise in the practice of profession. For these reasons the wisdom of requiring an applicant for admission to the bar to possess a high moral standard therefore becomes clearly apparent, and the board of bar examiners as an arm of the court, is required to cause a minute examination to be made of the moral standard of each candidate for admission to practice. . . . It needs no further argument, therefore, to arrive at the conclusion that the highest degree of scrutiny must be exercised as to the moral character of a candidate who presents himself for admission to the bar . The evil must, if possible, be successfully met at its very source, and prevented, for, after a lawyer has once been admitted, and has pursued his profession, and has established himself therein, a far more difficult situation is presented to the court when proceedings are instituted for disbarment and for the recalling and annulment of his license. In Re Keenan: 6 The right to practice law is not one of the inherent rights of every citizen , as in the right to carry on an ordinary trade or business. It is a peculiar privilege granted and continued only to those who demonstrate special fitness in intellectual attainment and in moral character. All may aspire to it on an absolutely equal basis, but not all will attain it. Elaborate machinery has been set up to test applicants by standards fair to all and to separate the fit from the unfit. Only

those who pass the test are allowed to enter the profession, and only those who maintain the standards are allowed to remain in it. Re Rouss: 7 Membership in the bar is a privilege burdened with conditions, and a fair private and professional character is one of them; to refuse admission to an unworthy applicant is not to punish him for past offense: an examination into character, like the examination into learning, is merely a test of fitness. Cobb vs. Judge of Superior Court: 8 Attorney's are licensed because of their learning and ability, so that they may not only protect the rights and interests of their clients, but be able to assist court in the trial of the cause. Yet what protection to clients or assistance to courts could such agents give? They are required to be of good moral character, so that the agents and officers of the court , which they are, may not bring discredit upon the due administration of the law, and it is of the highest possible consequence that both those who have not such qualifications in the first instance, or who, having had them, have fallen therefrom, shall not be permitted to appear in courts to aid in the administration of justice. It has also been stressed that the requirement of good moral character is, in fact, of greater importance so far as the general public and the proper administration of justice are concerned, than the possession of legal learning: . . . (In re Applicants for License, 55 S.E. 635, 143 N.C. 1, 10 L.R.A. [N.S.] 288, 10 Ann./Cas. 187): The public policy of our state has always been to admit no person to the practice of the law unless he covered an upright moral character. The possession of this by the attorney is more important , if anything, to the public and to the proper administration of justice than legal learning . Legal learning may be acquired in after years, but if the applicant passes the threshold of the bar with a bad moral character the chances are that his character will remain bad , and that he will become a disgrace instead of an ornament to his great calling a curse instead of a benefit to his community a Quirk, a Gammon or a Snap, instead of a Davis, a Smith or a Ruffin. 9 All aspects of moral character and behavior may be inquired into in respect of those seeking admission to the Bar. The scope of such inquiry is, indeed, said to be properly broader than inquiry into the moral proceedings for disbarment: Re Stepsay: 10 The inquiry as to the moral character of an attorney in a proceeding for his admission to practice is broader in scope than in a disbarment proceeding. Re Wells: 11

. . . that an applicant's contention that upon application for admission to the California Bar the court cannot reject him for want of good moral character unless it appears that he has been guilty of acts which would be cause for his disbarment or suspension, could not be sustained; that the inquiry is broader in its scope than that in a disbarment proceeding, and the court may receive any evidence which tends to show the applicant's character as respects honesty, integrity, and general morality, and may no doubt refuse admission upon proofs that might not establish his guilt of any of the acts declared to be causes for disbarment. The requirement of good moral character to be satisfied by those who would seek admission to the bar must of necessity be more stringent than the norm of conduct expected from members of the general public. There is a very real need to prevent a general perception that entry into the legal profession is open to individuals with inadequate moral qualifications. The growth of such a perception would signal the progressive destruction of our people's confidence in their courts of law and in our legal system as we know it. 12 Mr. Argosino's participation in the deplorable "hazing" activities certainly fell far short of the required standard of good moral character. The deliberate (rather than merely accidental or inadvertent) infliction of severe physical injuries which proximately led to the death of the unfortunate Raul Camaligan, certainly indicated serious character flaws on the part of those who inflicted such injuries. Mr. Argosino and his co-accused had failed to discharge their moral duty to protect the life and well-being of a "neophyte" who had, by seeking admission to the fraternity involved, reposed trust and confidence in all of them that, at the very least, he would not be beaten and kicked to death like a useless stray dog. Thus, participation in the prolonged and mindless physical beatings inflicted upon Raul Camaligan constituted evident rejection of that moral duty and was totally irresponsible behavior, which makes impossible a finding that the participant was then possessed of good moral character. Now that the original period of probation granted by the trial court has expired, the Court is prepared to consider de novo the question of whether applicant A.C. Argosino has purged himself of the obvious deficiency in moral character referred to above. We stress that good moral character is a requirement possession of which must be demonstrated not only at the time of application for permission to take the bar examinations but also, and more importantly, at the time of application for admission to the bar and to take the attorney's oath of office. Mr. Argosino must, therefore, submit to this Court, for its examination and consideration, evidence that he may be now regarded as complying with the requirement of good moral character imposed upon those seeking admission to the bar. His evidence may consist, inter alia, of sworn certifications from responsible members of the community who have a good reputation for truth and who have actually known Mr. Argosino for a significant period of time, particularly since the judgment of conviction was rendered by Judge Santiago. He should show to the Court how he has tried to make up for the senseless killing of a helpless student to the family of the deceased student and to the community at large. Mr. Argosino must, in other words, submit relevant evidence to show that he is a different person now, that he has become morally fit for admission to the ancient and learned profession of the law. Finally, Mr. Argosino is hereby DIRECTED to inform this Court, by appropriate written manifestation, of the names and addresses of the father and mother (in default thereof, brothers and sisters, if any, of Raul Camaligan), within ten (10) day from notice hereof. Let a

copy of this Resolution be furnished to the parents or brothers and sisters, if any, of Raul Camaligan. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero and Melo, JJ., concur. Bellosillo, J. is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 79690-707 October 7, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to be and acting as TanodbayanOmbudsman under the 1987 Constitution, respondents. G.R. No. 80578 October 7, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman ombudsman under the 1987 Constitution, respondent. PER CURIAM: The following are the subjects of this Resolution: 1) a Motion, dated 9 February 1988, to Cite in Contempt filed by petitioner Enrique A. Zaldivar against public respondent Special Prosecutor (formerly Tanodbayan) Raul M. Gonzalez, in connection with G.R. Nos. 79690-707 and G.R. No. 80578. and 2) a Resolution of this Court dated 2 May 1988 requiring respondent Hon. Raul Gonzalez to show cause why he should not be punished for contempt and/or subjected to administrative sanctions for making certain public statements. I The pertinent facts are as follows: Petitioner Zaldivar is one of several defendants in Criminal Cases Nos. 12159-12161 and 12163-12177 (for violation of the Anti-Graft and Corrupt Practices Act) pending before the Sandiganbayan. The Office of the Tanodbayan conducted the preliminary investigation and filed the criminal informations in those cases (originally TBP Case No. 86-00778). On 10 September 1987, petitioner filed with this Court a Petition for Certiorari, Prohibition and mandamus (G.R. Nos. 79690-707) naming as respondents both the Sandiganbayan and Hon. Raul M. Gonzalez. Among other things, petitioner assailed: (1) the 5 February 1987 Resolution 1 of the "Tanodbayan" recommending the filing of criminal informations against petitioner Zaldivar and his coaccused in TBP Case No. 86-00778; and (2) the 1 September 1987 Resolution 2 of the Sandiganbayan in Criminal Cases Nos. 1215912161 and 1216312177 denying his Motion to Quash the criminal informations filed in those cases by the "Tanodbayan." In this respect, petitioner alleged that respondent Gonzalez, as Tanodbayan and under the provisions of the 1987 Constitution, was

no longer vested with power and authority independently to investigate and to institute criminal cases for graft and corruption against public officials and employees, and hence that the informations filed in Criminal Cases Nos. 12159-12161 and 1216312177 were all null and void. On 11 September 1987, this Court issued a Resolution, which read: G.R. Nos. 79690-707 (Enrique A. Zaldivar vs. The Honorable Sandiganbayan and Honorable Raul M. Gonzalez, Claiming To Be and Acting as Tanodbayan-Ombudsman under the 1987 Constitution ).Acting on the special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, with urgent motion for preliminary elimination injunction, the Court Resolved, without giving due course to the petition, to require the respondents to COMMENT thereon, within ten (10) days from notice. The Court further Resolved to ISSUE a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering respondent Sandiganbayan to CEASE and DESIST from hearing and trying Criminal Cases Nos. 12159 to 12161 and 12163 to 12177 insofar as petitioner Enrique Zaldivar is concerned and from hearing and resolving the Special Prosecutor's motion to suspend dated September 3, 1987. The parties later filed their respective pleadings. Petitioner Zaldivar filed with this Court a second Petition for certiorari and Prohibition (G.R. No. 80578) on 19 November 1987, initially naming only Hon. Raul M. Gonzalez as respondent. That Petition assailed the 24 September 1987 Resolution 3 of the "Tanodbayan" in TBP Case No. 87- 01304 recommending that additional criminal charges for graft and corruption be filed against petitioner Zaldivar and five (5) other individuals. Once again, petitioner raised the argument of the Tanodbayan's lack of authority under the 1987 Constitution to file such criminal cases and to investigate the same. Petitioner also moved for the consolidation of that petition with G.R. No. 79690-707. In a Resolution dated 24 November 1987, 4 this Court, without giving due course to the second petition: (1) required respondent Gonzalez to submit a comment thereon: and (2) issued a temporary restraining order "ordering respondent Hon. Raul M. Gonzalez to CEASE and DESIST from further acting in TBP Case No. 8701394 ... and particularly, from filing the criminal information consequent thereof and from conducting preliminary investigation therein." In a separate resolution of the same date, 5 G.R. Nos. 79690-707 and G.R. No. 80578 were ordered consolidated by the Court. In the meantime, however, on 20 November 1987 or four (4) days prior to issuance by this Court of a temporary restraining order in G.R. No. 80578, the Office of the Tanodbayan instituted Criminal Case No. 12570 6 with the Sandiganbayan which issued on 23 November 1987 an Order of Arrest 7 for petitioner Zaldivar and his co-accused in Criminal Case No. 12570. Upon Motion 8 of petitioner Zaldivar, this Court issued the following Resolution on 8 December 1987: G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez and Sandiganbayan). The motion filed by the Solicitor General for respondents for an extension of thirty (30) days

from the expiration of the original period within which to file comment on the petition for certiorari and prohibition with prayer for a writ of preliminary injunction or restraining order is GRANTED. Acting on the manifestation with motion to treat the Sandiganbayan as party-respondent, the Court Resolved to (a) Consider IMPLEADED the Sandiganbayan as party respondent; and (b) In pursuance of and supplementing the Temporary Restraining Order of November 24, 1987 "ordering respondent Hon. Raul M. Gonzalez to CEASE and DESIST from further acting in TBP Case No. 87-01304 entitled, "Commission on Audit vs. Gov. Enrique Zaldivar, et al." and particularly, from filing the criminal information consequent thereof and from conducting preliminary investigation therein" ISSUE a TEMPORARY RESTRAINING ORDER effective immediately and continuing until further orders from this Court, ordering respondents Hon. Raul M. Gonzalez and Sandiganbayan to CEASE and DESIST from further acting in Criminal Case No. 12570, entitled, "People of the Philippines vs. Enrique M. Zaldivar, et al." and from enforcing the order of arrest issued by the Sandiganbayan in said case. The Solicitor General filed a Comment 9 on the petition in G.R. No. 80578, and we required the petitioner to submit a Reply 10 thereto. On 9 February 1988, petitioner Zaldivar filed with the Court a Motion to Cite in Contempt 11 directed at respondent Gonzalez. The Motion cited as bases the acts of respondent Gonzalez in: (1) having caused the filing of the information against petitioner in Criminal Case No. 12570 before the Sandiganbayan; and (2) issuing certain allegedly contemptuous statements to the media in relation to the proceedings in G.R. No. 80578. In respect of the latter, petitioner annexed to his Motion a photocopy of a news article, reproduced here in toto, which appeared in the 30 November 1987 issue of the "Philippine Daily Globe:" Tanod Scores SC for Quashing Graft Case TANODBAYAN Justice Raul M. Gonzalez said yesterday the Supreme Court order stopping him from investigating graft cases involving Antique Gov. Enrique Zaldivar can aggravate the thought that affluent persons "an prevent the progress of a trial." What I am afraid of (with the issuance of the order) is that it appears that while rich and influential persons get favorable actions from the Supreme Court, it is difficult for an ordinary litigant to get his petition to be given due course. Gonzalez told the Daily Globe in an exclusive interview. Gonzalez said the high tribunal's order '"eightens the people's apprehension over the justice system in this country, especially because the people have been thinking that only the small fly can get it while big fishes go scot-free." Gonzalez was reacting to an order issued by the tribunal last week after Zaldivar petitioned

the court to stop the Tanodbayan from investigating graft cases filed against him. Zaldivar had charged that Gonzalez was biased in his investigations because the latter wanted to help promote the political fortunes of a friend from Antique, lawyer Bonifacio Alentajan. Acting on Zaldivar's petition, the high court stopped Gonzalez from investigating a graft charge against the governor, and from instituting any complaint with the Sandiganbayan. While President Aquino had been prodding me to prosecute graft cases even if they involve the high and mighty, the Supreme Court had been restraining me. Gonzalez said. In accordance with the President's order, Gonzalez said he had filed graft cases against two "very powerful" officials of the Aquino government-Commissioner Quintin Doromal of the Presidential Commission on Good Government and Secretary Jiamil I.M. Dianlan of the Office of Muslim Affairs and Cultural Communities. While I don't wish to discuss the merits of the Zaldivar petition before the Supreme Court, I am a little bit disturbed that (the order) can aggravate the thinking of some people that affluent persons can prevent the progress of a trial, he said. He disclosed that he had a talk with the Chief Executive over the weekend and that while she symphatizes with local officials who are charged in court during election time, 'She said that it might be a disservice to the people and the voters who are entitled to know their candidates. Gonzalez said that while some cases filed against local officials during election time could be mere harassment suits, the Constitution makes it a right of every citizen to be informed of the character of tile candidate, who should be subject to scrutiny. (Emphasis supplied) Acting on petitioner's Motion to Cite in Contempt, the Court on 16 February 1988 required respondent Gonzalez "to COMMENT on aforesaid Motion within ten (10) days from notice." 12 On 27 April 1988, the Court rendered its Decision 13 (per curiam) in the Consolidated Petitions. The dispositive portion thereof read: WHEREFORE, We hereby: (1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed against him in the Sandiganbayan; and (2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and functions of the Ombudsman.

SO ORDERED. A Motion for Reconsideration 14 was filed by respondent Gonzalez the next day, 28 April 1988. In his Motion, respondent Gonzalez, after having argued the legal merits of his position, made the following statements totally unrelated to any legal issue raised either in the Court's Decision or in his own Motion: 1. That he "ha(d) been approached twice by a leading member of the court ... and he was asked to 'go slow on Zaldivar and 'not to be too hard on him;' " 2. That he "was approached and asked to refrain from investigating the COA report on illegal disbursements in the Supreme Court because 'it will embarass the Court;" and 3. That "(i)n several instances, the undersigned respondent was called over the phone by a leading member of the Court and was asked to dismiss the cases against (two Members of the Court)." Respondent Gonzalez also attached three (3) handwritten notes 15 which he claimed were sent by "some members of this Honorable Court, interceeding for cases pending before this office (i.e., the Tanodbayan)." He either released his Motion for Reconsideration with facsimiles of said notes to the press or repeated to the press the above extraneous statements: the metropolitan papers for the next several days carried long reports on those statements and variations and embellishments thereof On 2 May 1988, the Court issued the following Resolution in the Consolidated Petitions: G.R. No. 79690-707 (Enrique Zaldivar vs. The Hon. Sandiganbayan, et al. G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez, etc). 1. Acting on the Motion for Reconsideration filed by respondent Gonzalez under date of April 28, 1988, the Court Resolved to REQUIRE the petitioner to COMMENT thereon within ten (10) days from notice hereof. 2. It appearing that respondent Raul M. Gonzalez has made public statements to the media which not only deal with matters subjudice but also appear offensive to and disrespectful of the Court and its individual members and calculated, directly or indirectly, to bring the Court into disrepute, discredit and ridicule and to denigrate and degrade the administration of justice, the Court Resolved to require respondent Gonzalez to explain in writing within ten (10) days from notice hereof, why he should not be punished for contempt of court and/or subjected to administrative sanctions for making such public statements reported in the media, among others, in the issues of the "Daily Inquirer," the "Journal," the "Manila Times," the "Philippine Star," the "Manila Chronicle" the "Daily Globe" and the "Manila Standard" of April 29 and 30, and May 1, 1988, to wit: (a) That the Court resolution in question is merely "an offshoot of the position he had taken that the SC Justices cannot claim immunity from suit or investigation by government prosecutors

or motivated by a desire to stop him 'from investigating cases against some of their proteges or friends;" (b) That no less than six of the members of the Court "interceded for and on behalf of persons with pending cases before the Tanodbayan," or sought "to pressure him to render decisions favorable to their colleagues and friends;" (c) That attempts were made to influence him to go slow on Zaldivar and not to be too hard on him and to refrain from investigating the Commission on Audit report on illegal disbursements in the Supreme Court because it will embarass the Court; (d) That there were also attempts to cause the dismissal of cases against two Associate Justices; and (e) That the Court had dismissed judges' without rhyme or reason' and disbarred lawyers 'without due process. 3. It further appearing that three (3) affidavits relative to the purpose of and circumstances attendant upon the notes written to said public respondent by three (3) members of the Court have since been submitted to the Court and now form part of its official records, the Court further Resolved to require the Clerk of Court to ATTACH to this Resolution copies of said sworn statements and the annexes thereto appended, and to DIRECT respondent Gonzalez also to comment thereon within the same period of ten (10) days. 4. It finally appearing that notice of the Resolution of February 16, 1988 addressed to respondent Gonzalez was misdelivered and therefore not served on him, the Court Resolved to require the Clerk of Court to CAUSE SERVICE of said Resolution on the respondent and to REQUIRE the latter to comply therewith. Respondent Gonzalez subsequently filed with this Court on 9 May 1988 an Omnibus Motion for Extension and Inhibition 16 alleging, among other things: that the above quoted 2 May 1988 Resolution of the Court "appears to have overturned that presumption [of innocence] against him:" and that "he gravely doubts whether that 'cold neutrality [of an impartial judge] is still available to him" there being allegedly "at least 4 members of this Tribunal who will not be able to sit in judgment with substantial sobriety and neutrality." Respondent Gonzalez closed out his pleading with a prayer that the four (4) Members of the Court Identified and referred to there by him inhibit themselves in the deliberation and resolution of the Motion to Cite in Contempt. On 19 May 1988 17 after receipt of respondent's Supplemental Motion for Reconsideration. 18 this Court in an extended per curiam Resolution 19 denied the Motion and Supplemental Motion for Reconsideration. That denial was made "final and immediately executory. Respondent Gonzalez has since then filed the following pleadings of record: 1. Manifestation with Supplemental Motion to Inhibition 20 dated 23 May 1988;

2. Motion to Transfer Administrative Proceedures to the Integrated Bar of the 21 Philippines dated 20 May 1988 3. Urgent Motion for Additional Extension of Time to File Explanation Ex Abundante Cautelam, 22 dated 26 May 1988; 4. Urgent Ex-Parte Omnibus Motion (a) For Extension of Time (b) For Inhibition and (c) For Transfer of Administrative Proceedings to the IBP, Under Rule 139-B 23 dated 4 June 1988 (with Annex "A;" 24 an anonymous letter dated 27 May 1988 from the alleged Concerned Employees of the Supreme Court and addressed to respondent): 5. Ex-Parte Manifestation 25 dated 7 June 1988; 6. Urgent Ex-Parte Motion for Reconsideration 26 1988; and 7. Urgent Ex-Parte Manifestation with Motion member 1988.
27

authority over lawyers may come into play whether or not the misconduct with which the respondent is charged also constitutes contempt of court. The power to punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over lawyers. 36 The disciplinary authority of the Court over members of the Bar is but corollary to the Court's exclusive power of admission to the Bar. A lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in the task and responsibility of dispensing justice and resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and degrade the administration of justice constitutes both professional misconduct calling for the exercise of disciplinary action against him, and contumacious conduct warranting application of the contempt power. It is sometimes asserted that in the exercise of the power to punish for contempt or of the disciplinary authority of the Court over members of the Bar, the Court is acting as offended party, prosecutor and arbiter at one and the same time. Thus, in the present case, respondent Gonzalez first sought to get some members of the Court to inhibit themselves in the resolution of this case for alleged bias and prejudice against him. A little later, he in effect asked the whole Court to inhibit itself from passing upon the issues involved in this proceeding and to pass on responsibility for this matter to the Integrated Bar of the Philippines, upon the ground that respondent cannot expect due process from this Court, that the Court has become incapable of judging him impartially and fairly. Respondent Gonzalez misconceives the nature of the proceeding at bar as well as the function of the members of the Court in such proceeding. Respondent's contention is scarcely an original one. In In Re Almacen, 37 then Associate (later Chief) Justice Fred Fruiz Castro had occasion to deal with this contention in the following lucid manner: xxx xxx xxx It is not accurate to say, nor is it an obstacle to the exercise of our authority in the premises, that, as Atty. Almacen would have it appear, the members of the Court are the 'complainants, prosecutors and judges' all rolled up into one in this instance. This is an utter misapprehension, if not a total distortion, not only of the nature of the proceeding at hand but also of our role therein. Accent should be laid on the fact that disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is notand does not involvea trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the property and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities

In compliance with the 2 May 1988 Resolution of this Court quoted earlier, respondent Gonzalez submitted on 17 June 1988 an Answer with Explanation and Comment 28 offering respondent's legal arguments and defenses against the contempt and disciplinary charges presently pending before this Court. Attached to that pleading as Annex "A" thereof was respondent's own personal Explanation/Compliance 29 second explanation called "Compliance," 30 with annexes, was also submitted by respondent on 22 July 1988. II We begin by referring to the authority of the Supreme Court to discipline officers of the court and members of the Bar. The Supreme Court, as regulator and guardian of the legal profession, has plenary disciplinary authority over attorneys. The authority to discipline lawyers stems from the Court's constitutional mandate to regulate admission to the practice of law, which includes as well authority to regulate the practice itself of law. 31 Quite apart from this constitutional mandate, the disciplinary authority of the Supreme Court over members of the Bar is an inherent power incidental to the proper administration of justice and essential to an orderly discharge of judicial functions. 32 Moreover, the Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court. 33 The power to punish for contempt is "necessary for its own protection against an improper interference with the due administration of justice," "(it) is not dependent upon the complaint of any of the parties litigant. 34 There are, in other words, two (2) related powers which come into play in cases like that before us here; the Court's inherent power to discipline attorneys and the contempt power. The disciplinary authority of the Court over members of the Bar is broader than the power to punish for contempt. Contempt of court may be committee both by lawyers and non-lawyers, both in and out of court. Frequently, where the contemnor is a lawyer, the contumacious conduct also constitutes professional misconduct which calls into play the disciplinary authority of the Supreme Court. 35 Where the respondent is a lawyer, however, the Supreme Court's disciplinary

pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any tirade against the Court as a body is necessarily and inextricably as much so against the individual members thereof But in the exercise of its disciplinary powers, the Court acts as an entity separate and distinct from the individual personalities of its members. Consistently with the intrinsic nature of a collegiate court, the individual members act not as such individuals but only as a duly constituted court. The distinct individualities are lost in the majesty of their office. So that, in a very real sense, if there be any complainant in the case at bar, it can only be the Court itself, not the individual members thereofas well as the people themselves whose rights, fortunes and properties, nay, even lives, would be placed at grave hazard should the administration of justice be threatened by the retention in the Bar of men unfit to discharge the solemn responsibilities of membership in the legal fraternity. Finally, the power to exclude persons from the practice of law is but a necessary incident of the power to admit persons to said practice. By constitutional precept, this power is vested exclusively in this Court. This duty it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction legally invested upon it . So that even if it be conceded that the members collectively are in a sense the aggrieved parties, that fact alone does not and cannot disqualify them from the exercise of the power because public policy demands that they, acting as a Court, exercise the power in all cases which call for disciplinary action. The present is such a case. In the end, the imagined anomaly of the merger in one entity of the personalities of complainant, prosecutor and judge is absolutely inexistent. xxx xxx xxx. 38 It should not be necessary for the members of this Court expressly to disclaim any bias or prejudice against the respondent that would prevent them from acting in accordance with the exacting requirements of their oaths of office. It also appears to the Court that for all the members to inhibit themselves from sitting on this case is to abdicate the responsibility with which the Constitution has burdened them. Reference of complaints against attorneys either to the Integrated Bar of the Philippines or to the Solicitor General is not mandatory upon the Supreme Court; such reference to the Integrated Bar of the Philippines or to the Solicitor General is certainly not an exclusive procedure under the terms of Rule 139-B of the Revised Rules of Court, especially where the charge consists of acts done before the Supreme Court. There is no need for further investigation of facts in the present case for it is not substantially disputed by respondent Gonzalez that he uttered or wrote certain statements attributed to him. In any case, respondent has had the amplest opportunity to present his defense; his defense is not that he did not make the statements ascribed to him but that those statements give rise to no liability on his part, having been made in the exercise of his freedom of speech. The issues which thus need to be resolved here are issues of law and of basic policy and the Court, not any other agency, is compelled to resolve such issues. III

It is necessary to become very explicit as to what respondent Gonzalez was saying in his statements set out above. Respondent has not denied making the above statements; indeed, he acknowledges that the newspaper reports of the statements attributed to him are substantially correct. 39 Respondent Gonzalez was in effect saying, firstly, that the Supreme Court deliberately rendered an erroneous or wrong decision when it rendered its per curiam Decision dated 27 April 1988 in G.R. Nos. 79690-707 and 80578. That decision according to respondent Gonzalez, was issued as an act of retaliation by the Court against him for the position he had taken "that the (Supreme Court) Justices cannot claim immunity from suit or investigation by government prosecutors," and in order to stop respondent from investigating against "some of (the) proteges or friends (of some Supreme Court Justices)." The Court cannot, of course, and will not debate the correctness of its Decision of 27 April 1988 and of its Resolution dated 19 May 1988 (denying respondent Gonzalez Motion for Reconsideration) in the consolidated Zaldivar cases. Respondent Gonzalez, and anyone else for that matter, is free intellectually to accept or not to accept the reasoning of the Court set out in its per curiam Decision and Resolution in the consolidated Zaldivar cases. This should not, however, obscure the seriousness of the assault thus undertaken by respondent against the Court and the appalling implications of such assault for the integrity of the system of administration of justice in our country. Respondent has said that the Court rendered its Decision and Resolution without regard to the legal merits of the Zaldivar cases and had used the judicial process to impose private punishment upon respondent for positions he had taken (unrelated to the Zaldivar cases) in carrying out his duties. It is very difficult to imagine a more serious affront to, or a greater outrage upon, the honour and dignity of this Court than this. Respondent's statement is also totally baseless. Respondent's statements were made in complete disregard of the fact that his continuing authority to act as Tanodbayan or Ombudsman after the effectivity of the 1987 Constitution, had been questioned before this Court as early as 10 September 1987 in the Petition for Certiorari, Prohibition and mandamus filed against him in these consolidated Petitions 40 that is, more than seven (7) months before the Court rendered its Decision. Respondent also ignores the fact that one day later, this Court issued a Temporary Restraining Order effective immediately ordering the Sandiganbayan to cease and desist from hearing the criminal cases filed against petitioner Zaldivar by respondent Gonzalez. Respondent also disregards the fact that on 24 November 1987, upon the filing of a second Petition for certiorari for Prohibition by Mr. Zaldivar, the Court issued a Temporary Restraining Order this time requiring the respondent to cease and desist from further acting in TBP Case No. 87-0934. Thus, the decision finally reached by this Court in April 1988 on the constitutional law issue pending before the Court for the preceding eight (8) months, could scarcely have been invented as a reprisal simply against respondent. A second charge that respondent Gonzalez hurled against members of the Supreme Court is that they have improperly Id pressured" him to render decisions favorable to their "colleagues and friends," including dismissal of "cases" against two (2) members of the Court. This particularly deplorable charge too is entirely baseless, as even a cursory examination of the contents of the handwritten notes of three (3) members of this Court addressed to respondent (which respondent attached to his Motion for Reconsideration of the Decision of this Court of 27 April 1988 in the consolidated Petitions) win show. It is clear, and respondent Gonzalez does not pretend otherwise, that the subject matters of the said notes had no relation at all to the issues in G.R. Nos. 79690-707 and 80578. This charge appears to have been made in order to try to impart some substance (at least in the mind of respondent) to the first accusation made by respondent that the Court had deliberately rendered a wrong decision to get even with respondent who had, with great fortitude, resisted "pressure" from some members of the Court. Once again, in total effect, the statements made by respondent appear designed to cast the Court into gross disrepute, and to cause among the general public scorn for and distrust in the Supreme Court and, more generally, the judicial institutions of the Republic.

Respondent Gonzalez has also asserted that the Court was preventing him from prosecuting "rich and powerful persons," that the Court was in effect discrimination between the rich and powerful on the one hand and the poor and defenseless upon the other, and allowing "rich and powerful" accused persons to go "scot-free" while presumably allowing or affirming the conviction of poor and small offenders. This accusation can only be regarded as calculated to present the Court in an extremely bad light. It may be seen as intended to foment hatred against the Supreme Court; it is also suggestive of the divisive tactics of revolutionary class war. Respondent, finally, assailed the Court for having allegedly "dismissed judges 'without rhyme or reason' and disbarred lawyers 'without due process.'" The Court notes that this last attack is not without relation to the other statements made by respondent against the Court. The total picture that respondent clearly was trying to paint of the Court is that of an "unjudicial" institution able and willing to render "clearly erroneous" decisions by way of reprisal against its critics, as a body that acts arbitrarily and capriciously denying judges and lawyers due process of law. Once again, the purport of respondent's attack against the Court as an institution unworthy of the people's faith and trust, is unmistakable. Had respondent undertaken to examine the records 'of the two (2) judges and the attorney he later Identified in one of his Explanations, he would have discovered that the respondents in those administrative cases had ample opportunity to explain their side and submit evidence in support thereof. 41 He would have also found that there were both strong reasons for and an insistent rhyme in the disciplinary measures there administered by the Court in the continuing effort to strengthen the judiciary and upgrade the membership of the Bar. It is appropriate to recall in this connection that due process as a constitutional precept does not, always and in all situations, require the trial-type proceeding, 42 that the essence of due process is to be found in the reasonable opportunity to be heard and to submit any evidence one may have in support of one's defense. 43 "To be heard" does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. 44 As noted earlier, respondent Gonzalez was required by the Court to explain why he should not be punished for contempt and/or subjected to administrative discipline for making the statements adverted to above. In his subsequent pleadings where he asked the full Court to inhibit itself and to transfer the administrative proceedings to the Integrated Bar of the Philippines, respondent made, among others, the following allegations: (a) That the Members of the Court "should inhibit [themselves] in the contempt and administrative charges against the respondent, in the light of the manifest prejudice and anger they hold against respondent as shown in the language of the resolution on the Motion for Reconsideration;" (b) That "the entire membership of the court has already lost that 'cold neutrality of an impartial judge' [to] be able to allow fairness and due process in the contempt citation as well as in the possible administrative charge; (c) That "respondent honestly feels that this court as angry and prejudiced as it is, respondent has no china man's chance to get fair hearing in the contempt and possible administrative charges;" (d) That one must consider "the milieu before this Tribunal with, perhaps passion and obfuscation running riot;"

(e) That respondent, "after having been castigated with such venom by the entire Court in its decision denying the Motion for Reconsideration, does not have confidence in the impartiality of the entire Court" and that he "funds it extremely difficult to believe that the members of this Tribunal can still act with unbiased demeanor towards him;" and (f) That "the Tribunal is determined to disbar [respondent] without due process" and that a specified Member of the Court "has been tasked to be the ponente, or at least prepare the decision." (Underscoring in the original) Thus, instead of explaining or seeking to mitigate his statements earlier made, respondent sought to heap still more opprobrium upon the Court, accusing it of being incapable of judging his acts and statements justly and according to law. Once again, he paints this Court as a body not only capable of acting without regard to due process but indeed determined so to act. A grand design to hold up this Court to public scorn and disrespect as an unworthy tribunal, one obfuscated by passion and anger at respondent, emerges once more. It is very difficult for members of this Court to understand how respondent Gonzalez could suppose that judges on the highest tribunal of the land would be ready and willing to violate their most solemn oath of office merely to gratify any imagined private feelings aroused by respondent. The universe of the Court revolves around the daily demands of law and justice and duty, not around respondent nor any other person or group of persons. Whether or not the statements made by respondent Gonzalez may reasonably be regarded by this Court as contumacious or as warranting exercise of the disciplinary authority of this Court over members of the Bar, may best be assayed by examining samples of the kinds of statements which have been held in our jurisdiction as constituting contempt or otherwise warranting the exercise of the Court's authority. 1. In Montecillo v. Gica, 45 Atty. Quirico del Mar as counsel for Montecillo, who was accused in a slander case, moved to reconsider a decision of the Court of Appeals in favor of the complainant with a veiled threat that he should interpose his next appeal to the President of the Philippines. In his Motion for Reconsideration, he referred to the provisions of the Revised Penal Code on "knowingly rendering an unjust judgment," and "judgment rendered through negligence" and implied that the Court of Appeals had allowed itself to be deceived. Atty. del Mar was held guilty of contempt of court by the Court of Appeals. He then sued the three (3) justices of the Court of Appeals for damages before the Court of First Instance of Cebu, seeking to hold them liable for their decision in the appealed slander case. This suit was terminated, however, by compromise agreement after Atty. del Mar apologized to the Court of Appeals and the justices concerned and agreed to pay moral damages to the justices. Atty. del Mar some time later filed with this Court a Petition for Review on certiorari of a decision of the Court of Appeals in a slander case. This Court denied the Petition for Review. Atty. del Mar then filed a Motion for Reconsideration and addressed a letter to the Clerk of the Supreme Court asking for the names of the justices of this Court who had voted in favor of and those who had voted against his Motion for Reconsideration. After his Motion for Reconsideration was denied for lack of merit, Atty. del Mar filed a Manifestation in this Court saying: I can at this time reveal to you that, had your Clerk of Court furnished me with certified true copies of the last two Resolutions of the Supreme Court confirming the decision of the Court of Appeals in the case entitled Francisco M. Gica vs. Jorge Montecillo , I would have filed against the Justices supporting the same, civil and criminal suits as I did to the Justices of the

Court of Appeals who, rewarding the abhorent falsification committed by Mr. Gica, reversed for him the decisions of the City Court and the Court of First Instance of Cebu, not with a view to obtaining a favorable judgment therein but for the purpose of exposing to the people the corroding evils extant in our Government, so that they may well know them and work for their extermination. (60 SCRA at 240;emphasis supplied) Counsel was asked to explain why he should not be administratively dealt with for making the above statements. In his additional explanation, Atty. del Mar made the following statements: ... Graft, corruption and injustice are rampant in and outside of the Government. It is this state of things that convinced me that all human efforts to correct and/or reform the said evils will be fruitless and, as stated in my manifestation to you, I have already decided to retire from a life of militancy to a life of seclusion, leaving to God the filling up deficiencies. (60 SCRA at 242) The Court suspended Atty. del Mar, "until further orders," from the practice of law saying: ... Respondent is utilizing what exists in his mind as state of graft, corruption and injustice allegedly rampant in and outside of the government as justification for his contemptuous statements. In other words, he already assumed by his own contemptuous utterances that because there is an alleged existence of rampant corruption, graft and injustice in and out of the government, We, by Our act in G.R. No. L-36800, are among the corrupt, the grafters and those allegedly committing injustice. We are at a complete loss to follow respondent del Mar's logic ... xxx xxx xxx To aged brethren of the bar it may appear belated to remind them that second only to the duty of maintaining allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines, is the duty of all attorneys to observe and maintain the respect due to the courts of justice and judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But We do remind them of said duty to emphasize to their younger brethren its paramount importance. A lawyer must always remember that he is an officer of the court exercising a high privilege and serving in the noble mission of administering justice. xxx xxx xxx. As already stated, the decision of the Court of Appeals in C.A G.R. No. 46504-R was based on its evaluation of the evidence on only one specific issue. We in turn denied in G.R. No. L36800 the petition for review on certiorari of the decision because We found no reason for disturbing the appellate court's finding and conclusion. In both instances, both the Court of Appeals and this Court exercised judicial discretion in a case under their respective jurisdiction. The intemperate and imprudent act

of respondent del Mar in resorting to veiled threats to make both Courts reconsider their respective stand in the decision and the resolution that spelled disaster for his client cannot be anything but pure contumely for aid tribunals. It is manifest that respondent del Mar has scant respect for the two highest Court of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client. xxx xxx xxx ... To those who are in the practice of law and those who in the future will choose to enter this profession, We wish to point to this case as a reminder for them to imprint in their hearts and minds that an attorney owes it to himself to respect the courts of justice and its officers as a fealty for the stability of our democratic institutions. (60 SCRA at 242-247: emphasis supplied) 2. In Surigao Mineral Reservation Board v. Cloribel, 46 four (4) members of the bar, acting as counsel for MacArthur International Minerals Company were required by this Court to explain certain statements made in MacArthur's third Motion for Reconsideration: d. ...; and I the Supreme Court I has overlooked the applicable law due to the mis-representation and obfuscation of the petitioners' counsel. (Last sentence, par. 1, Third Motion for Reconsideration dated Sept. 10, 1968). e. ... Never has any civilized democratic tribunal ruled that such a gimmick (referring to the "right to reject any and all bids") can be used by vulturous executives to cover up and excuse losses to the public, a government agency or just plain fraud ... and it is thus difficult, in the light of our upbringing and schooling, even under many of the incumbent justices, that the Honorable Supreme Court intends to create a decision that in effect does precisely that in a most absolute manner. (Second sentence, par. 7, Third Motion for Reconsideration dated Sept. 10, 1968). (31 SCRA at 6) They were also asked to explain the statements made in their Motion to Inhibit filed on 21 September 1968 asking Mr. Chief Justice Roberto Concepcion and Mr. Justice Fred Ruiz Castro to inhibit themselves from considering, judging and resolving the case or any issue or aspect thereof retroactive to January 11, 1967. The motion charges "It that the brother of the Honorable Associate Justice Castro is a vice-president of the favored party who is the chief beneficiary of the false, erroneous and illegal decision dated January 31, 1968" and the ex-parte preliminary injunction rendered in the above-entitled case, the latter in effect prejudging and predetermining this case even before the joining of an issue. As to the Chief Justice, the motion

states [t]hat the son of the Honorable Chief Justice Roberto Concepcion was given a significant appointment in the Philippine Government by the President a short time before the decision of July 31, 1968 was rendered in this case. The appointment referred to was as secretary of the newly-created Board of Investments. The motion presents a lengthy discourse on judicial ethics, and makes a number of side comments projecting what is claimed to be the patent wrongfulness of the July 31, 1968 decision. It enumerates "incidents" which, according to the motion, brought about respondent MacArthur's belief that unjudicial prejudice had been caused it and that there was 'unjudicial favoritism' in favor of 'petitioners, their appointing authority and a favored party directly benefited by the said decision (31 SCRA at 6-7) Another attorney entered his appearance as new counsel for MacArthur and filed a fourth Motion for Reconsideration without leave of court, which Motion contained the following paragraphs: 4. The said decision is illegal because it was penned by the Honorable Chief Justice Roberto Concepcion when in fact he was outside the borders of the Republic of the Philippines at the time of the Oral Argument of the above-entitled casewhich condition is prohibited by the New Rules of CourtSection 1, Rule 51, and we quote: "Justices; who may take part... . Only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication ... ." This requirement is especially significant in the present instance because the member who penned the decision was the very member who was absent for approximately four months or more. This provision also applies to the Honorable Justices Claudio Teehankee and Antonio Barredo. xxx xxx xxx 6. That if the respondent MacArthur International Minerals Company abandons its quest for justice in the Judiciary of the Philippine Government, it will inevitably either raise the graft and corruption of Philippine Government officials in the bidding of May 12, 1965, required by the Nickel Law to determine the operator of the Surigao nickel deposits, to the World Court on grounds of deprivation of justice and confiscation of property and/or to the United States Government, either its executive or judicial branches or both, on the grounds of confiscation of respondent's proprietary vested rights by the Philippine Government without either compensation or due process of law and invoking the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amounting to more than fifty million dollars annually, until restitution or compensation is made. (31 SCRA at 10-11) Finding their explanations unsatisfactory, the Court, speaking through Mr. Justice Sanchez, held three (3) attorneys guilty of contempt:

1. We start with the case of Atty. Vicente L. Santiago. In his third motion for reconsideration, we, indeed, find language that is not to be expected of an officer of the courts. He pictures petitioners as 'vulturous executives.' He speaks of this Court as a 'civilized, democratic tribunal,' but by innuendo would suggest that it is not. In his motion to inhibit, his first paragraph categorizes our decision of July 31, 1968 as 'false, erroneous and illegal' in a presumptuous manner. He then charges that the ex parte preliminary injunction we issued in this case prejudiced and predetermined the case even before the joining of an issue. He accuses in a reckless manner two justices of this Court for being interested in the decision of this case: Associate Justice Fred Ruiz Castro, because his brother is the vice president of the favored party who is the chief beneficiary of the decision, and Chief Justice Roberto Concepcion, whose son was appointed secretary of the newly-created Board of Investments, 'a significant appointment in the Philippine Government by the President, a short time before the decision of July 31, 1968 was rendered.' In this backdrop, he proceeds to state that 'it would seem that the principles thus established [the moral and ethical guidelines for inhibition of any judicial authority by the Honorable Supreme Court should first apply to itself.' He puts forth the claim that lesser and further removed conditions have been known to create favoritism, only to conclude that there is no reason for a belief that the conditions obtaining in the case of the Chief Justice and Justice Castro would be less likely to engender favoritism and prejudice for or against a particular cause or party.' Implicit in this at least is that the Chief Justice and Justice Castro are insensible to delicadeza, which could make their actuation suspect. He makes it plain in the motion that the Chief Justice and Justice Castro not only were not free from the appearance of impropriety but did arouse suspicion that their relationship did affect their judgment. He points out that courts must be above suspicion at all times like Ceasar's wife, warns that loss of confidence for the Tribunal or a member thereof should not be allowed to happen in our country, 'although the process has already begun. xxx xxx xxx What is disconcerting is that Atty. Santiago's accusations have no basis in fact and in law. The slur made is not limited to the Chief Justice and Mr. Justice Castro. It sweepingly casts aspersion on the whole court. For, inhibition is also asked if, we repeated any other justices who have received favors or benefits directly or indirectly from any of the petitioners or any members of any board-petitioner or their agents or principals, including the president.' The absurdity of this posture is at once apparent. For one thing, the justices of this Court are appointed by the President and in that sense may be considered to have each received a favor from the President. Should these justices inhibit themselves every time a case involving the Administration crops up? Such a thought may not certainly be entertained. The consequence thereof would be to paralyze the

machinery of this Court. We would in fact, be wreaking havoc on the tripartite system of government operating in this country. Counsel is presumed to know this. But why the unfounded charge? There is the not too-well concealed effort on the part of a losing litigant's attorney to downgrade this Court. The mischief that stems from all of the foregoing gross disrespect is easy to discern. Such disrespect detracts much from the dignity of a court of justice. Decidedly not an expression of faith, counsel's words are intended to create an atmosphere of distrust, of disbelief. xxx xxx xxx The precepts, the teachings, the injunctions just recited are not unfamiliar to lawyers. and yet, this Court finds in the language of Atty. Santiago a style that undermines and degrades the administration of justice. The stricture in Section 3 (d) of Rule 71 of the Rules against improper conduct tending to degrade the administration of justice is thus transgressed. Atty. Santiago is guilty of contempt of court. xxx xxx xxx Third. The motion contained an express threat to take the case to the World Court and/or the United States government. It must be remembered that respondent MacArthur at that time was still trying to overturn the decision of this Court of July 31, 1968. In doing so, unnecessary statements were in ejected. More specifically, the motion announced that McArthur 'will inevitably ... raise the graft and corruption of the Philippine government officials in the bidding of May 12, 1965 ... to the World Court' and would invoke 'the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amount to more than fifty million dollars annually ... This is a clear attempt to influence or bend the blind of this Court to decide the case' in its favor. A notice of appeal to the World Court has even been embodied in Meads return. There is a gross inconsistency between the appeal and the move to reconsider the decision. An appeal from a decision presupposes that a party has already abandoned any move to reconsider that decision. And yet, it would appear that the appeal to the World Court is being dangled as a threat to effect a change of the decision of this Court. Such act has no aboveboard explanation. xxx xxx xxx The dignity of the Court, experience teaches, can never be protected where infraction of ethics meets with complacency rather than punishment. The people should not be given cause to break faith with the belief that a judge is the epitome of honor amongst men. To preserve its dignity, a court of justice should not yield to the assaults of disrespect. Punctilio of

honor, we prefer to think, is a standard of behavior so desirable in a lawyer pleading a cause before a court of justice. (31 SCRA at 1323; emphasis supplied) 3. In In re Almacen, supra, Atty. Vicente Raul Almacen, in protest against what he asserted was "a great injustice committed against his client by the Supreme Court," filed a Petition to Surrender Lawyer's Certificate of Title. He alleged that his client was deeply aggrieved by this Court's "unjust judgment," and had become "one of the sacrificial victims before the altar of hypocrisy," saying that "justice as administered by the present members of the Supreme Court [was) not only blind, but also deaf and dumb." Atty. Almacen vowed to argue the cause of his client "in the people's forum" so that "the people may know of this silent injustice committed by this Court' and that "whatever mistakes, wrongs and injustices that were committed [may] never be repeated." Atty. Almacen released to the press the contents of his Petition and on 26 September 1967, the "Manila Times" published statements attributed to him as follows: Vicente Raul Almacen, in an unprecedented petition, said he did not expose the tribunal's 'unconstitutional and obnoxious' practice of arbitrarily denying petitions or appeals without any reason. Because of the tribunal's 'short-cut justice.' Almacen deplored, his client was condemned to pay P120,000, without knowing why he lost the case. xxx xxx xxx There is no use continuing his law practice, Almacen said in this petition, 'where our Supreme Court is composed of men who are calloused to our pleas of justice, who ignore without reason their own applicable decisions and commit culpable violations of the Constitution with impunity.' xxx xxx xxx He expressed the hope that by divesting himself of his title by which he earns his living, the present members of the Supreme Court 'will become responsible to all cases brought to its attention without discrimination, and will purge itself of those unconstitutional and obnoxious "lack of merit' or "denied resolutions. (31 SCRA at 565566; emphasis supplied) Atty. Almacen was required by this Court to show cause why disciplinary action should not be taken against him. His explanation, which in part read: xxx xxx xxx The phrase, Justice is blind is symbolized in paintings that can be found in all courts and government offices. We have added only two more symbols, that it is also deaf and dumb. Deaf in the sense that no members of this Court has ever heard our cries for charity, generosity, fairness, understanding, sympathy and for justice; dumb in the sense, that inspire of our beggings, supplications, and pleadings to give us reasons why our appeals has been DENIED, not one word was spoken or given ... We refer to no human defect or ailment in the above

statement. We only described the impersonal state of Things and nothing more. xxx xxx xxx As we have stated, we have lost our faith and confidence in the members of this Court and for which reason we offered to surrender our lawyer's certificate, IN TRUST ONLY. Because what has been lost today may be regained tomorrow. As the offer was intended as our selfimposed sacrifice, then we alone may decide as to when we must end our self- sacrifice. If we have to choose between forcing ourselves to have faith and confidence in the members of the Court but disregard our Constitution and to uphold the Constitution and be condemned by the members of this Court, there is no choice, we must uphold the latter. (31 SCRA at 572; emphasis supplied) was found by the Court to be "undignified and cynical" and rejected. The Court indefinitely suspended Almacen from the practice of law holding, through Mr. Justice Fred Ruiz Castro, that Almacen had exceeded the boundaries of "fair criticism." 4. In Paragas V. Cruz, 47 Counsel, whose Petition for Ceriorari ran was dismissed by this Court, made the following statements in his Motion for Reconsideration: The petitioner respectfully prays for a reconsideration of the resolution of this Honorable Court dated April 20,1966 on the ground that it constitutes a violation of Section 14 of Rule 11 2 of the Rules of Court promulgated by this very Hon. Supreme Court, and on the further ground that it is likewise a violation of the most important right in the Bill of Rights of the Constitution of the Philippines, a culpable violation which is a ground for impeachment. ... The rule of law in a democracy should always be upheld and protected by all means, because the rule of law creates and preserves peace and order and gives satisfaction and contentment to all concerned. But when the laws and the rules are violated, the victims resort, sometimes, to armed force and to the ways of the cavemen We do not want Verzosa and Reyes repeated again and again, killed in the premises of the Supreme Court and in those of the City Hall of Manila. Educated people should keep their temper under control at all times! But justice should be done to all concerned to perpetuate the very life of Democracy on the face of the earth. (14 SCRA at 810; emphasis supplied) The Court considered the above statements as derogatory to the dignity of the Court and required counsel to show cause why administrative action should not be taken against him. Counsel later explained that he had merely related factual events (i.e., the killing of Verzosa and Reyes) and to express his desire to avoid repetition of such acts. The Court, through Mr. Justice J.B.L. Reyes, found these explanations unsatisfactory and the above statements contumacious. ... The expressions contained in the motion for reconsideration ... are plainly contemptuous and disrespectful, and reference to the recent killing of two employees is but a covert threat

upon the members of the Court. ... That such threats and disrespectful language contained in a pleading filed in courts are constitutive of direct contempt has been repeatedly decided (Salcedo vs. Hernandez, 61 Phil. 724; People vs. Venturanza, 52 Off. Gaz. 769; Medina vs. Rivera, 66 Phil. 151; De Joya vs. Court of First Instance of Rizal, 1, 9785, September 19,1956; Sison vs. Sandejas L- 9270, April 29,1959; Lualhati vs. Albert, 57 Phil. 86). What makes the present case more deplorable is that the guilty party is a member of the bar; for, as remarked in People vs. Carillo, 77 Phil. 580Counsel should conduct himself towards the judges who try his cases with that courtesy all have a right to expect. As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice. It in light and plausible that an attorney in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so, for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts require. (Salcedo vs. Hernandez, [In re Francisco], 61 Phil. 729)' (1 4 SCRA at 811-812; emphasis supplied) 5. In In re Sotto, 48 a newspaper reporter, Mr. Angel Parazo, invoking the Press Freedom Law, refused to divulge the source of the news item which carried his by-line and was sent to jail for so refusing. Atty. Vicente Sotto, a senator and author of said law, caused the publication of the following item in a number of daily newspapers in Manila: As author of the Press Freedom Law (Republic Act No. 53), interpreted by the Supreme Court in the case of Angel Parazo, reporter of a local daily, who now has to suffer 30 days imprisonment, for his refusal to divulge the source of a news published in his paper, I regret to say that our High Tribunal has not only erroneously interpreted said law, but that it is once more putting in evidence the incompetency or narrow mindedness of the majority of its members. In the wake of so many blunders and injustices deliberately committed during these last years, I believe that the only remedy to put an end to so much evil, is to change the members of the Supreme Court. To this effect, I announce that one of the first measures, which I will introduce in the coming congressional sessions, will have as its object the complete reorganization of the Supreme Court. As it is now constituted, the Supreme Court of today constitutes a constant peril to liberty and democracy. It need be said loudly, very loudly, so that even the deaf may hear: The Supreme Court of today is a far cry from the impregnable bulwark of Justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of the Philippine Judiciary. (82 Phil. at 597-598; emphasis supplied)

In finding Atty. Sotto in contempt, despite his avowals of good faith and his invocation of the constitutional guarantee of free speech and in requiring him to show cause why he should not be disbarred, the Court, through Mr. Justice Feria, saidTo hurl the false charge that this Court has been for the last years committing deliberately so many blunders and injustices that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the coincidence of the people in the honesty and integrity of the members of this Court, and consequently to lower and degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation. (82 Phil. at 601-602; emphasis supplied) 6. In Salcedo v. Hernandez, 49 Atty. Vicente Francisco filed a Motion before the Supreme Court which contained the following paragraph (in translation): We should like frankly and respectfully to make it of record that the resolution of this court , denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may be corrected by the very court which has committed it, because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of each and every member thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of sakdalism and make the public lose confidence in the administration of justice. (61 Phil. at 726; emphasis supplied)

When required by the Court to show cause why he should not be declared in contempt, Atty. Francisco responded by saying that it was not contempt to tell the truth. Examining the statements made above, the Court held: ... [they] disclose, in the opinion of this court, an inexcusable disrespect of the authority of the court and an intentional contempt of its dignity, because the court is thereby charged with no less than having proceeded in utter disregard of the laws, the rights of the parties, and of the untoward consequences, or with having abused its power and mocked and flouted the rights of Attorney Vicente J. Francisco's client, because the acts of outraging and mocking from which the words 'outrage' and mockery' used therein are derived, means exactly the same as all these, according to the Dictionary of the Spanish Language published by the Spanish Academy (Dictionary of the Spanish Language, 15th ed., pages 132-513). The insertion of the phrases in question in said motion of Attorney Vicente J. Francisco, for many years a member of the Philippine bar, was neither justified nor in the least necessary, because in order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done, because both means are annoying and good practice can ever sanction them by reason of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in judicial matters, in the consideration of questions submitted for resolution. There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more or less veiled threat to the court because it is insinuated therein, after the author shows the course which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim; and because he states in a threatening manner with the intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of that referred to in his motion to promote distrust in the administration of justice and increase the proselytes of sakdalism a movement with seditious and revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.

As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it had conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio St., Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief (61 Phil. at 727-728; emphasis supplied) It should not be supposed that the six (6) cases above discussed exhaust our case law on this matter. In the following cases, among others, the Supreme Court punished for contempt or administratively disciplined lawyers who had made statements not very different from those made in the cases discussed above: 1) In re Wenceslao Laureta, 148 SCRA 382 (1987); 2) Borromeo v. Court of appeals, 87 SCRA 67 (1978); 3) Rheem of the Philippines v. Ferrer, 20 SCRA 441 (1967); 4) Malolos v. Reyes, 1 SCRA 559 (1961); 5) De Joya, et al. v. Court of First Instance of Rizal, Pasay City Branch, 99 Phil. 907 (1956); 6) People v. Venturanza, et al., 98 Phil. 211 (1956); 7) In re Suzano A. Velasquez, per curiam Resolution (unreported), Promulgated 29 April 1955; 8) Cornejo v. Tan, 85 Phil. 772 (1950); 9) People v. Carillon, 77 Phil. 572 (1946); 10) Intestate Estate of Rosario 0lba; Contempt Proceedings against Antonio Franco, 67 Phil. 312 (1939); and 11) Lualhati v. Albert, 57 Phil. 86 (1932). Considering the kinds of statements of lawyers discussed above which the Court has in the past penalized as contemptuous or as warranting application of disciplinary sanctions, this Court is compelled to hold that the statements here made by respondent Gonzalez clearly constitute contempt and call for the exercise of the disciplinary authority of the Supreme Court. Respondent's statements, especially the charge that the Court deliberately rendered an erroneous and unjust decision in the Consolidated Petitions, necessarily implying that the justices of this Court betrayed their oath of office, merely to wreak vengeance upon the respondent here, constitute the grossest kind of disrespect for the Court. Such statements very clearly debase and degrade the Supreme Court and, through the Court, the entire system of

administration of justice in the country. That respondent's baseless charges have had some impact outside the internal world of subjective intent, is clearly demonstrated by the filing of a complaint for impeachment of thirteen (13) out of the then fourteen (14) incumbent members of this Court, a complaint the centerpiece of which is a repetition of the appalling claim of respondent that this Court deliberately rendered a wrong decision as an act of reprisal against the respondent. IV The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of free speech. He also invokes the related doctrines of qualified privileged communications and fair criticism in the public interest. Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter put it: ... A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary be vindicated. And one of the potent means for assuring judges their independence is a free press. 50 Mr. Justice Malcolm of this Court expressed the same thought in the following terms: The Organic Act wisely guarantees freedom of speech and press. This constitutional right must be protected in its fullest extent. The Court has heretofore given evidence of its tolerant regard for charges under the Libel Law which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the citizens must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizens should not be confused with liberty ill its true sense. As important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary. Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes, and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarassment of the parties and the courts. 51 (Emphasis supplied)

Only slightly (if at all) less important is the public interest in the capacity of the Court effectively to prevent and control professional misconduct on the part of lawyers who are, first and foremost, indispensable participants in the task of rendering justice to every man. Some courts have held, persuasively it appears to us, that a lawyer's right of free expression may have to be more limited than that of a layman. 52 It is well to recall that respondent Gonzalez, apart from being a lawyer and an officer of the court, is also a Special Prosecutor who owes duties of fidelity and respect to the Republic and to this Court as the embodiment and the repository of the judicial power in the government of the Republic. The responsibility of the respondent "to uphold the dignity and authority of this Court' and "not to promote distrust in the administration of justice 53 is heavier than that of a private practicing lawyer. Respondent Gonzalez claims to be and he is, of course, entitled to criticize the rulings of this Court, to point out where he feels the Court may have lapsed into error. Once more, however, the right of criticism is not unlimited. Its limits were marked out by Mr. Justice Castro in In re Almacen which are worth noting But it is the cardinal condition of all such criticism that it shall be bonafide and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action. The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers even those gifted with superior intellect are enjoined to rein up their tempers. xxx xxx xxx 54 (Emphasis supplied) The instant proceeding is not addressed to the fact that respondent has criticized the Court; it is addressed rather to the nature of that criticism or comment and the manner in which it was carried out. Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The subjectivities of the respondent are irrelevant so far as characterization of his conduct or misconduct is concerned. He will not, however, be allowed to disclaim the natural and plain import of his words and acts. 55 It is upon the other hand, not irrelevant to point out that respondent offered no apology in his two (2) explanations and exhibited no repentance. 56 Respondent Gonzalez also defends himself contending that no injury to the judiciary has been shown, and points to the fact that this Court denied his Motion for Reconsideration of its per curiam Decision of 27 April 1988 and reiterated and amplified that Decision in its Resolution of 19 May 1988. In the first place, proof of actual damage sustained by a court or the judiciary in general is not essential for a finding of contempt or for the application of the disciplinary authority of the Court. Insofar as the Consolidated Petitions are concerned, this Court after careful review of the bases of its 27 April 1988 Decision, denied respondent's Motion for Reconsideration thereof and rejected the public pressures brought to bear upon this Court by the respondent through his much publicized acts and statements for which he is here being required

to account. Obstructing the free and undisturbed resolution of a particular case is not the only species of injury that the Court has a right and a duty to prevent and redress. What is at stake in cases of this kind is the integrity of the judicial institutions of the country in general and of the Supreme Court in particular. Damage to such institutions might not be quantifiable at a given moment in time but damage there will surely be if acts like those of respondent Gonzalez are not effectively stopped and countered. The level of trust and confidence of the general public in the courts, including the court of last resort, is not easily measured; but few will dispute that a high level of such trust and confidence is critical for the stability of democratic government. Respondent Gonzalez lastly suggests that punishment for contempt is not the proper remedy in this case and suggests that the members of this Court have recourse to libel suits against him. While the remedy of libel suits by individual members of this Court may well be available against respondent Gonzalez, such is by no means an exclusive remedy. Moreover, where, as in the instant case, it is not only the individual members of the Court but the Court itself as an institution that has been falsely attacked, libel suits cannot be an adequate remedy. 57 The Court concludes that respondent Gonzalez is guilty both of contempt of court in facie curiae and of gross misconduct as an officer of the court and member of the Bar. ACCORDINGLY, the Court Resolved to SUSPEND Atty. Raul M. Gonzalez from the practice of law indefinitely and until further orders from this Court, the suspension to take effect immediately. Let copies of this Resolution be furnished the Sandiganbayan, the Ombudsman, the Secretary of Justice, the Solicitor General and the Court of Appeals for their information and guidance. Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, GrioAquino, Medialdea and Regalado, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-59524 February 18, 1985 JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

GUTIERREZ, JR., J.: The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines.

The background of this case is a matter of public knowledge. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property. On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons. On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila. Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time. On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980. On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twentyfour hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial

asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected. On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority. Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which included petitioner as a coaccused), stating that "the preliminary investigation of the aboveentitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence. On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice. On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981. On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad. On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself. On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him.

On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner. The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today. After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition. However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents. The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined. The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception. In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit: xxx xxx xxx ... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.) On this argument, we ruled: There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969." Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a

democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused. In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other coaccused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions. The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system? The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? We do not think so. The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Taada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor

Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied: A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15) Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been crossexamined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information. Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness. According to Lovely's statement, the following events took place: 36. Q. Did Psinakis tell you where to stay? A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission 37. Q. Did you comply as instructed? A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila.

38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M. 39. Q. What happened then? A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name. 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed. 41. Q. How long did you wait until that somebody arrived? A. About thirty (30) minutes. 41. Q. What happened when the man arrived? A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse." 43. Q. Were the materials given to you? A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all the materials I needed.

xxx xxx xxx 45. Q. What were the contents of the Puma bag? A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces nonelectrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each. However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned: xxx xxx xxx Q. Who were the people that you contacted in Manila and for what purpose? A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga. And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied) During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement: Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated? WITNESS: A. Not to my knowledge.

COURT TO WITNESS: Q. Mr. Witness, who invited you to the party? A. Raul Daza, your Honor. Q. Were you told that Mr. Salonga would be present in the party. A. I am really not quite sure, your Honor. Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party? A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84). Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said: Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67) Respondent judge further said: COURT: As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination. ATTY. YAP: Because according to him, it was in pursuance of the plan that he came to Manila. COURT: According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions.

COURT: In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74). Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony. However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately. It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers. The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons(1) Because his house was used as a "contactpoint"; and (2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to

be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing. It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding. The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments. The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel

it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech. It stated: We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President. In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to: (6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof. As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization. Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that: WITNESS:

Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10]. Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner: COURT: Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? A. No, your Honor. I did not try to implicate Salonga. It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents. The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention. The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima

facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93). The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution. We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations. Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution. Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic. Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions. The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions. The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated: The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required.

In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution). In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports. In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records. WHEREFORE, the petition is DISMISSED for having become moot and academic. SO ORDERED. Republic of the Philippines SUPREME COURT Manila G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents. x-------------------------------------x G.R. No. 171409 May 3, 2006

NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, vs. HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents. x-------------------------------------x G.R. No. 171485 May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA,

SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners, vs. EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents. x-------------------------------------x G.R. No. 171483 May 3, 2006

SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: All powers need some restraint; practical adjustments rather than rigid formula are necessary.1 Superior strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty. Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: "In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak ." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption against their constitutional validity."2 These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?3 On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. She cited the following facts as bases: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, vs. HER EXCELLENCY, PRESIDENT GLORIA MACAPAGALARROYO, THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents. x-------------------------------------x G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents. G.R. No. 171489 May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOSVIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents. x-------------------------------------x G.R. No. 171424 May 3, 2006

LOREN B. LEGARDA, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the peoples confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; On the same day, the President issued G. O. No. 5 implementing PP 1017, thus: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the dulyconstituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist. In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo. 4 They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners counsels. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While he explained that it is not respondents task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms." 5 On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground. On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo

Group and the National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to his arrest, Lt. San Juan announced through DZRH that the " Magdalos DDay would be on February 24, 2006, the 20th Anniversary of Edsa I." On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty." On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said "it was all systems go for the planned movement against Arroyo."8 B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commanderin-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio. Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: " The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it."9 On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: " Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with the forces of the national democratic movement, the antiArroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006. Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10 By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including media, can already be implemented."11 Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions- Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.12 According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.13 A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." The PNP warned that it would take over any media organization that would not follow "standards set by the government during the state of national emergency." Director General Lomibao stated that "if they do not follow the standards and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He asked for "balanced reporting" from broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.14 Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite. Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely. Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions. On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against the abovenamed respondents. Three (3) of these petitions impleaded President Arroyo as respondent. In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is " absolutely no emergency" that warrants the issuance of PP 1017. In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that " it amounts to an exercise by the President of emergency powers without congressional approval." In addition, petitioners asserted that PP 1017 " goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code." And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are " unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution. " In this regard, she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and redress of grievances. On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be summarized as follows: A. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whetherthe Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge A. PROCEDURAL

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

First, we must resolve the procedural roadblocks. I- Moot and Academic Principle One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must be some authority

competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial review.22 But the power of judicial review does not repose upon the courts a "selfstarting capacity."23 Courts may exercise such power only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself.24 Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of parties having adverse legal interest;" a real and substantial controversy admitting of specific relief. 25 The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered "moot and academic" by President Arroyos issuance of PP 1021. Such contention lacks merit. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, 26 so that a declaration thereon would be of no practical use or value. 27 Generally, courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29 The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative."30 The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;31 second, the exceptional character of the situation and the paramount public interest is involved; 32 third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;33 and fourth, the case is capable of repetition yet evading review.34 All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police , on the extent of the protection given by constitutional guarantees.35 And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justices very statement that an otherwise "moot" case may still be decided "provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance. "

The present case falls right within this exception to the mootness rule pointed out by the Chief Justice. II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In private suits, standing is governed by the "real-partiesin interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of the real party in interest ." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit."38 Succinctly put, the plaintiffs standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer. Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins :40 "In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied ." With respect to taxpayers suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied." However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result ." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse Trainers Association v. De la Fuente ,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48 However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its

categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.51 Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of "transcendental importance." Pertinent are the following cases: (1) Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that "given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces Agreement; (3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed. By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) the cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing. In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a peoples organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct injury" test with respect to concerned citizens cases involving constitutional issues. It held that "there

must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act." In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing. In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights. In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform ,62 Basco v. Philippine Amusement and Gaming Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their members.65 We take judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5. In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that petitioner have locus standi. In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more the

transcendental importance of the issue involved, this Court may relax the standing rules. It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the " transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases."1avvphil.net This Court holds that all the petitioners herein have locus standi. Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency,67 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people 68 but he may be removed from office only in the mode provided by law and that is by impeachment.69 B. SUBSTANTIVE I. Review of Factual Bases Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue such Proclamation. The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political questions," particularly those questions "in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." 75 Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances, "under which the President is supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. 78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to reexamine the latter case, ratiocinating that " in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God."79 The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most pertinent to these cases at bar -- echoed a principle similar to Lansang.

While the Court considered the Presidents "calling-out" power as a discretionary power solely vested in his wisdom, it stressed that " this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and enforceable," but also " to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82 As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that "judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis " and that if he fails, by way of proof, to support his assertion, then " this Court cannot undertake an independent investigation beyond the pleadings." Petitioners failed to show that President Arroyos exercise of the callingout power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty. II. Constitutionality of PP 1017 and G.O. No. Doctrines of Several Political Theorists on the Power of the President in Times of Emergency 5

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion. John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act according to discretion for the public good, without the proscription of the law and sometimes even against it ."84 But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency. According to him: The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even Sparta allowed its law to lapse... If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear that the peoples first intention is that the State shall not perish.86 Rosseau did not fear the abuse of the emergency dictatorship or " supreme magistracy" as he termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an " appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship.87 John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship."88 Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus: Now, in a well-ordered society, it should never be necessary to resort to extra constitutional measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it.89 Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints.90 Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be used as a means for the defense of liberal institutions," provided it "serves to protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political life."92 He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive, while at the same time "imposing limitation upon that power."93 Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a dictatorship: "The period of dictatorship must be relatively shortDictatorship should always be strictly legitimate in characterFinal authority to determine the need for dictatorship in any given case must never rest with the dictator himself"94 and the objective of such an emergency dictatorship should be "strict political conservatism." Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power in a government where power has

consciously been divided to cope with situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The emergency executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order."97 Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as solution to the vexing problems presented by emergency. 98 Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship," thus: 1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the State and its constitutional order 2) the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator 3) No government should initiate a constitutional dictatorship without making specific provisions for its termination 4) all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements 5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis . . . 6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or effect 7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order. . . 8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . . 9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the hands of the man or men who constitute the dictator. . . 10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted 11) the termination of the crisis must be followed by a complete return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship99 Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, "the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used, "constitutional dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism" articulated by Charles H. McIlwain: A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible . He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really effective checks on despotism have consisted not in the weakening of government but, but rather in the limiting of it; between which there is a great and very significant difference. In associating constitutionalism with "limited" as distinguished from "weak" government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.101 In the final analysis, the various approaches to emergency of the above political theorists - from Locks "theory of prerogative," to Watkins doctrine of "constitutional dictatorship" and, eventually, to McIlwains "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jacksons "balanced power structure."102 Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations. a. "Facial Challenge" Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens. A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases, also known under the American Law as First Amendment cases.103 A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104 the US Supreme Court held that " we have not recognized an overbreadth doctrine outside the limited context of the First Amendment" (freedom of speech). Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held: It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary action is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation. Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort ," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. 108 A writer and scholar in Constitutional Law explains further: The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the

Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that: [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. "110 It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. b. Constitutional Basis of PP 1017 Now on the constitutional foundation of PP 1017. The operative portion of PP 1017 may be divided into three important provisions, thus: First provision: "by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion" Second provision: "and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction;" Third provision: "as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency." First Provision: Calling-out Power The first provision pertains to the Presidents calling-out power. In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call

out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that "whenever it becomes necessary," the President may call the armed forces " to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion . This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a "state of rebellion" emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of

which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. President Arroyos declaration of a "state of rebellion" was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power. The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law."113 In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza, 114 an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides: A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires. Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyos callingout power for the armed forces to assist her in preventing or suppressing lawless violence. Second Provision: "Take Care" Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. As the Executive in whom the executive power is vested, 115 the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, "execute its laws."116 In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country, 117 including the Philippine National Police118 under the Department of Interior and Local Government.119 Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause " to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction." \ Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted120 from Former President Marcos Proclamation No. 1081, which partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS , President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction." Is it within the domain of President Arroyo to promulgate "decrees"? PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction." The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987). She may issue any of the following: Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall

be promulgated in proclamations which shall have the force of an executive order. Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders. Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars. Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders. President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution. 121 This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that " [t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. Third Provision: Power to Take Over The pertinent provision of PP 1017 states: x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency. The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971 Constitutional Convention. 122 In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over " the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency." Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers. This is an area that needs delineation. A distinction must be drawn between the Presidents authority to declare "a state of national emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. Section 23, Article VI of the Constitution reads: SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. It may be pointed out that the second paragraph of the above provision refers not only to war but also to " other national emergency." If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a "state of national emergency." The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers . This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power

not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.124 Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the " the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest ," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held: It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the United States. The order cannot properly be sustained as an exercise of the Presidents military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nations lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the Presidents power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . ."126 Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to " tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency." Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. 127 Emergencies, as perceived

by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic,128 b) natural disaster,129 and c) national security.130 "Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. 131 This is evident in the Records of the Constitutional Commission, thus: MR. GASCON. Yes. What is the Committees definition of "national emergency" which appears in Section 13, page 5? It reads: When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters. MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots? MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency." MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.132 xxxxxx MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this be economic emergency?" MR. VILLEGAS. Yes, it could refer to both military or economic dislocations. MR. TINGSON. Thank you very much.133 It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest. In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis. "x x x After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the Constitution has set up this form of government, with all its defects and shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws been surrendered to another department unless we regard as legislating the carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances the various branches,

executive, legislative, and judicial, given the ability to act, are called upon to perform the duties and discharge the responsibilities committed to them respectively." Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. c. "AS APPLIED CHALLENGE" One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow. Of the seven (7) petitions, three (3) indicate "direct injury." In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest. In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard their office as a possible "source of destabilization." Again, the basis was PP 1017. And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I. A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017. Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal implementation of a law render it unconstitutional? Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused 135 and may afford an opportunity for abuse in the manner of application .136 The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP 1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from its exertion .138 This is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the executive officer to his subordinates precisely for the proper and efficient administration of law. Such rules and regulations create no relation except between the official who issues them and the official who receives them. 139 They are based on and are the product of, a relationship in which power is their source, and obedience, their object.140 For these reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence." Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism. In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our country, but the international community as well. The following observations are quite apropos: In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public, but are clearly determined by strategic interests. The basic problem underlying all these military actions or threats of the use of force as the most recent by the United States against Iraq consists in the absence of an agreed definition of terrorism. Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as liberation movements, or by individuals. The dilemma can by summarized in the saying "One countrys terrorist is another countrys freedom fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally respected statesmen. What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts from eventually legitimate acts of national resistance or self-defense? Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate "terrorism" with any violent act by non-state groups against civilians, state functionaries or

infrastructure or military installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned. The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a liberation movement for Arabs and Muslims the Kashmiri resistance groups who are terrorists in the perception of India, liberation fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the Socialist camp or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way because of opposing political interests that are at the roots of those perceptions. How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-versa. The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international affairs has been the unavoidable consequence. This "definitional predicament" of an organization consisting of sovereign states and not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even more serious in the present global power constellation: one superpower exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United States.141 The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding penalty thereon. So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations." The word "terrorism" is mentioned in the following provision: "That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x." P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what

acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional. Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and appropriate to suppress and prevent lawless violence , the limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal. We first examine G.R. No. 171396 (David et al.) The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."142 The plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.143 In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence. Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and x x x. Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the inquest for the charges of i nciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally. 146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also their right to peaceably assemble. Section 4 of Article III guarantees: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. "Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime, thus: Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge. On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that " freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens right to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated. Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. 150 The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by government

action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure. G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribunes offices were searched without warrant;second, the police operatives seized several materials for publication; third, the search was conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices. Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened.151 The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG operatives. Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff 152 this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what

he is permitted to say on pain of punishment should he be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta principiis.154 Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible "for any purpose," thus: JUSTICE CALLEJO: You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the admissibility of these clippings that were taken from the Tribune? SOLICITOR GENERAL BENIPAYO: Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any purpose.155 xxxxxxxxx SR. ASSO. JUSTICE PUNO: These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you have to go there at 1 oclock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what? SOLGEN BENIPAYO:

SOLGEN BENIPAYO: Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do not condone this. If the people who have been injured by this would want to sue them, they can sue and there are remedies for this.156 Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be condoned, thus: CHIEF JUSTICE PANGANIBAN: There seems to be some confusions if not contradiction in your theory. SOLICITOR GENERAL BENIPAYO: I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the police officers, that is their responsibility.157 The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in no constitutional or statutory breaches if applied according to their letter." The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional and illegal. In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an integral part of this ponencia. SUMMATION

Well, it was the police that did that, Your Honor. Not upon my instructions. SR. ASSO. JUSTICE PUNO: Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017. SOLGEN BENIPAYO: It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and inspect and gather clippings from Daily Tribune or any other newspaper. SR. ASSO. JUSTICE PUNO: Is it based on any law? SOLGEN BENIPAYO: As far as I know, no, Your Honor, from the facts, no. SR. ASSO. JUSTICE PUNO: So, it has no basis, no legal basis whatsoever? In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues raised by the parties should not be "evaded;" they must now be resolved to prevent future constitutional aberration. The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest. In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also

provides a valid standard that the military and the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence ."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of G.O. No. 5. On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5. Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative liabilities. It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty. Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.158 WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privatelyowned public utility or business affected with public interest without prior legislation. G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL. No costs.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 104216 August 20, 1993 TEODORO B. PANGILINAN, petitioner, vs. GUILLERMO T. MAGLAYA, THE EXECUTIVE SECRETARY, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, respondents. Gancayco Law Office and Moncupa, Torio & Malaya Law Offices for petitioner. The Solicitor General for respondents.

CRUZ, J.: The petitioner complains that he has been removed from office without due process and just cause in disregard of his constitutional security of tenure. Worse, his removal was made in bad faith, immediately after his expose of certain anomalies in which superiors were involved. Teodoro B. Pangilinan joined the government service on July 18, 1966, when he was appointed agent in the National Bureau of Investigation, a position for which he had the appropriate civil service eligibility. He had risen to Supervising Agent when he resigned to accept appointment as Executive Director of the Land Transportation Office on July 8, 1987. He assumed office on July 16, 1987. The petitioner says that from February 19, 1988 to November 30, 1988, he was detailed to the Manila International Airport Authority, where he served as Assistant General Manager in charge of finance and administration and also of security and general services. Upon his return to the LTO, he was designated as Resident Ombudsman in addition to his regular duties. As such, he discovered, among other anomalies, irregularities in the purchase of motor vehicle license plates. The license plates ordered were not reflective as required by P.D. 98 and B.P. 43. He says he brought this matter to the attention of Asst. Secretary Manuel Sabalza of the Department of Transportation and Communications and later of Secretary Pete Prado. Neither of them took any action. On September 27, 1991, the petitioner called a press conference expose what the media later described as "the license plate mess." He also announced his intention to file graft charges with the Ombudsman against Prado, Sabalza and Undersecretary Jose Valdecaas, also of the DOTC. The following day, Secretary Prado relieved Pangilinan as Executive Director of the LTO and replaced him with Guillermo Maglaya as officer-in-charge. However, the petitioner continued receiving his salary (although his allowances were withheld) until December 31, 1991. When he asked why his pay had been discontinued, he was informed by Asst. Secretary Juan V. Borra, Jr. that Maglaya had already been designated as Acting Executive Director of the LTO.

In this petition, Pangilinan prays for reinstatement on the ground that no charge has been filed or proved against him to justify his removal. Required to comment, the Solicitor General argues that Pangilinan was validly separated because he was appointed to the disputed position in an acting capacity only. He does not possess the qualifications prescribed for the office of Executive Director of the LTO, which is a career executive service position for which only a career executive service official is eligible. The petitioner is not a career executive service official. Hence, he could not be, and was not extended a permanent appointment. The public respondents cite Sec. 5(1) of P.D. 807 which provides that membership in the career executive service requires: (i) that the official must be included in the register of career executive eligibles; and (ii) that the official must have been appointed to an appropriate class in the Career Executive Service. Respondent Augusto B. Araneta, who was later designated to replace Maglaya, submitted the following certification from the Executive Director of the Career Executive Service Board: 1 CERTIFICATION This is to certify that the position of Executive Director in the Land Transportation Office, Department of Transportation and Communications is classified as a position belonging to the Career Executive Service (CES). This is to certify further that per records of the Career Executive Service Board (CESB), MR. TEODORO B. PANGILINAN, former Executive Director of said office is not a CES eligible, and was not appointed to a rank in the CES. This certification is issued upon the request of Atty. Augusto B. Araneta for whatever purpose it may serve. (Sgd.) ELMOR Executive Director D. JURIDICO

Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official, functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee. The person named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority. In his reply Pangilinan submits that the Achacoso case is not applicable because the petitioner therein was, to begin with, not a civil service eligible. The petitioner say he is, having passed the board examination for certified public accountants. He also argues that his appointment must be likened to the provisional appointment under the old Civil Service Act before it was replaced by P.D. 807. The provisional appointment enjoyed security of tenure. Pangilinan adds that even on the assumption that his appointment was not permanent, his separation must still be for a valid cause because Article IX-B, Section 2 (3), of the Constitution applies to all officers and employees in the civil service without distinction. Invoking the case of Gray v. De Vera, 3 Pangilinan likens himself to the petitioner therein who was summarily relieved when, as the board secretary of the People's Homesite and Housing Corporation, he sent a telegram to the President of the Philippines imputing irregularities to the directors. His separation also came the following day. Although Gray was holding a primarily confidential position without any fixed term, this Court ordered his reinstatement. We held that he had been denied procedural due process and there was no valid cause for his removal. Also cited by the petitioner are Cario v. ACCFA, 4 Floreza v. Ongpin 5 and Jocom v. Robredo (not Regalado), 6 in all of which cases the security of tenure of the dismissed employees was upheld. The petitioner raises a new issue, to wit, that even if he were considered only an acting appointee, he nevertheless could not be replaced except by a person possessing the required qualifications, as required by PD 807. He has produced certifications, 7 also from the Executive Director of the Career Executive Service Board, that neither Guillermo T. Maglaya nor Augusto B. Araneta is a CES eligible or a career executive service officer. He also argues, belatedly too, that as a presidential appointee, he could be replaced only by the President of the Philippines and not by only the Secretary of Transportation and Communications. As required by the Court, the respondents have submitted a Compliance manifesting that Juan A. Magarro, Jr., the new appointee to the position of Executive Director of the LTO (replacing Guillermo Maglaya and Antonio B. Araneta) possesses the prescribed qualifications for the office. 8 They repeat that the applicable case is Achacoso, not Gray. Gray was extended a permanent appointment whereas Achacoso, like Pangilinan, could be appointed only in an acting capacity for lack of the prescribed qualifications for the office.

The respondents also invoke the case of Achacoso v. Macaraig, where this Court declared:

It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. xxx xxx xxx The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications.

We must hold for the respondents. Gray and the other cases cited by the petitioner involved permanent appointees who therefore had security of tenure. Pangilinan was only an acting appointee because he did not have the requisite qualifications; as such, he could not claim security of tenure. This Court has repeatedly held that this guaranty is available only to permanent appointees. 9 The fact that Pangilinan was qualified for his initial appointment as agent in the NBI does not mean he was qualified for all other positions he might later occupy in the civil service. The law does not prescribe uniform qualifications for all public positions regardless of nature or degree. Although Gray was holding a highly confidential position, the Court regarded his separation as a removal and so applied the constitutional prohibition against the suspension or dismissal of an officer or member of the civil service without cause as provided by law. That was rather loose interpretation of the term "dismissal," which is defined as the ouster of the incumbent before the expiration of his term. Subsequent decisions have made it clear that where a person holds his position at the pleasure of a superior or subject to some supervening event, his separation from office is not a removal. 10 It is effected by the will of the superior or by the happening of the contingency, resulting in another and different mode of terminating official relations known as expiration of the term. Chief Justice Concepcion explained the distinction between removal and expiration of the term in Alajar v. Alba 11 thus: In the case at bar, the term of respondent Alajar as Vice Mayor of the City of Roxas is not fixed by law. However, the latter, in effect, vests in the President the power to fix such term . When in November 1955, petitioner Alba was designated as Acting Vice-Mayor of said City, the term of respondent Alba was, thereby, fixed implicitly by the President, in the exercise of his aforementioned authority. Thus, the term of office of Alajar expired and his right to hold office was extinguished, with the same legal effect as if the term had been fixed by Congress itself. In other words, Alajar was not removed from office, for "to remove an officer is to oust him from office before the expiration of his term" (Manalang v. Quitonano et al., 50 Off. Gaz., 2515). Alajar merely lost the right to hold the office of Vice-Mayor of the City of Roxas by expiration of his term as such. The petitioner's invocation of the provisional appointment as comparable to his position is a grasping at straws. The provisional appointment has long been abolished and has no legal application or effect in this case. There are now only two kinds of appointment under the Administrative Code of 1987, to wit: Sec. 27. Employment Statues. Appointment in the career service shall be permanent or temporary. (1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a

temporary appointment, shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. Strictly speaking, the petitioner's temporary appointment as Executive Director of the LTO should have ended twelve months after he assumed office, or on July 16, 1988. From that date, his appointment had ceased to be valid even if a qualified replacement was not yet available and consequently had to be discontinued pursuant to the above-quoted provision. Indeed, even on the assumption that his appointment could be and had been validly extended beyond the one-year limit, that extended term was nevertheless validly terminated with the appointment of his qualified replacement. The petitioner's contention that he could not be relieved by Secretary Prado but only by the President of the Philippines is also a shot in the dark. It has long been settled, and does not require further elaboration here, that the acts of a Department Secretary, when "performed and promulgated in the regular course of business" are presumptively the acts of the President unless "disapproved or reprobated" by him. This doctrine dates back to 1939, when it was First laid down by Justice Laurel in Villena v. Secretary of the Interior, 12 and has been consistently observed since then. Parenthetically, the petitioner's own appointment to the disputed position was signed not by President Corazon C. Aquino but by Executive Secretary Joker P. Arroyo. 13 In view of the foregoing considerations, we hold that Pangilinan has lost the right to the position of Executive Director of the LTO and so cannot be reinstated therein. Shall the Court end here? There is more to be said. It is not difficult to see that the petitioner was replaced because of his expose and his threat to bring charges against his superiors. His relief was clearly an act of punishment if not personal vengeance. This is not denied. The respondents, while invoking the law to justify his separation, have made no effort whatsoever to justify their motives. In Gray, the Court held that the board secretary, while holding a highly confidential. position, owed his loyalty not to the board but to the government. In the present case, Pangilinan was not even holding a similar position. His continued incumbency did not depend upon his enjoyment of the confidence of his superiors who had no personal claim to his loyalty. In exposing what he considered the anomalies in the DOTC, he was, like Gray, manifesting his concern for the government whose interests he wanted to protect. It would be a sorry day, indeed, if a civil servant could be summarily removed from his position for the "sin" of complaining about the irregularities of his superiors. This would not only impair the integrity of the civil service but also undermine the campaign to encourage the public, including those in the civil service, to expose and denounce venality in government. Pangilinan's denunciation of the non-reflective license plates we not the act of a rabble-rouser or a publicity-seeker. The record shows that he quietly brought the matter to the attention of his superiors, giving reasons for his misgivings. They took no action. Feeling frustrated, he sought the attention of the media and told them of his objection to the non-reflective license plates. He cited the laws that he claimed had been violated. He narrated his efforts to prevent their violation. He spoke of the indifference of his superiors. In doing all these, he was exercising his right as a citizen, and especially as a

civil servant, to denounce official misconduct and improve the public service. This is not to say, of course, that Pangilinan's charges are valid. The Court is not prepared to do so at this time because the evidence on this matter is not before it. For all we know, there is a satisfactory explanation for the attitude of his superiors; it is possible that it is Pangilinan who has misinterpreted the law or misread the facts. But true or not, the charges per se, and standing alone, could not be the basis of Pangilinan's swift and summary replacement. Pangilinan was separated the day immediately following his press conference. The Court sees the action as a retaliation. The public respondents say they were merely terminating his incumbency in accordance with existing law. The Court sees that termination as a punishment. Under the expanded definition of judicial power in Article VIII, Section 1, of the Constitution, the Court can declare the acts of the public respondents as tainted with grave abuse of discretion and therefore invalid. But it is not as simple as that. The obstinate fact is that, regardless of the motives of his superiors, Pangilinan no longer had any right to the disputed position when he was separated from it in 1991. He ceased to be entitled to it in 1988 upon the lapse of the maximum period for his acting appointment. Obviously, he is not entitled to it now. Even if it be supposed that the public respondents acted maliciously when they relieved him in 1991, his reinstatement is still not possible under the law as it now stands. The petitioner warns that the dismissal of his petition would open the door to the summary separation of civil servants to the prejudice of the integrity and independence of the civil service. He claims that "there are about 2,067 CESO positions in the entire Philippine civil service. Of this number only 372 or about 18% are occupied by Career Executive Service eligibles." 14 The rest may be summarily separated as acting appointees and are therefore subject to the whims of their superiors. He suggests that "a ruling by this Honorable Court that would sustain the position of petitioner would go a long way toward the upliftment of the morale of the 'ineligibles.'" Assuming that the petitioner's statistics are correct, the Court can only share his trepidation. We can do no more. As judges, we can only interpret and apply the law and, despite our doubts about its wisdom, cannot repeal or amend it. In the case at bar, we have no power to give the petitioner the qualifications he does not possess. Qualifications for public officers are prescribed by the Constitution or the law, or even by implementing regulations, but not by the decisions of courts. The problem posed by the petitioner is a serious threat to the integrity and independence of the civil service. As demonstrated in this case, the doctrine announced in Achacoso may be used to muzzle and punish legitimate complaint and even to persecute "difficult" subordinates. That doctrine, let it be stressed, is only an interpretation and application by the Court of the law as enacted by the legislative and implemented by the executive. That doctrine can change only if the laws and regulations on which it was based are also changed, not by this Court but by the political departments. In Javier v. Commission on Elections, 15 we said: The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same.

Indeed they are not, and sadly so for the petitioner. For ironically, the law he invokes for the protection of his right has instead denied him the justice he seeks and deserves. This emphasizes, no less sadly, the fallacy that for every legal wrong there is a judicial remedy. Untrue, unfortunately. The Court is not a panacea. There are times, regrettably, when justice is shackled by the law, and even this Court cannot break the chains. WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED.